State v. Godwin

• Decision Date: 06 November 1907
• Citation: 59 S.E. 132,145 N.C. 461
• Parties: STATE v. GODWIN.
• Court: North Carolina Supreme Court

59 S.E. 132

145 N.C. 461

STATE v. GODWIN.

Supreme Court of North Carolina

November 6, 1907

Appeal from Superior Court, Jackson County; Justice, Judge.

Vernon Godwin was convicted of injuring and removing a fence surrounding a yard, etc., under a peremptory instruction, and appeals. Reversed, and new trial ordered.

This is an indictment for injuring and removing a fence surrounding a yard, garden, and cultivated field, under Revisal 1905, § 3673. When the evidence was closed, the court instructed the jury to return a verdict of guilty. The defendant contended that the fence obstructed West street (extended) in the town of Polkton, while the state insisted that the land surrounded by the fence had not been dedicated to the public for the purpose of being used as a street, and to these respective contentions the testimony was addressed. There was evidence tending to show, as we think, that the property was originally owned by L. L. Polk, who extended West street, as at first dedicated or laid out by him and accepted by the town, and then sold lots-at least two-on the extended portion of the street. The defendant testified as follows: "Mr Briley lives in my house, which is situated in the town of Polkton. The residence is situated on the Sturdivant lot which is one square acre. There was a street in front of my house when I bought it 25 or 30 years ago. Elms had been set out as shade trees along this road, which were 8 or 10 years old at the time. The street was opened at that time 75 or 100 yards below my house. The fence constructed by Dr. Smith ran straight across the space opened up for the street, and then ran down the space with my line for some distance and across this space again. The road had been used up to the house. It had been cut out for some distance below, but had never been used. There was a clear space of 40 or 50 feet wide opened along my eastern line to the Austin line, now the Beachum line. All of this property was owned by L. L. Polk when I bought the Sturdivant lot and when the Sturdivant lot was bought from me, and also the second lot that I bought from L L. Polk. Large trees had been cut out and this space opened up for a street, and has now grown up in bushes. I set out shade trees along the space, which had been opened for this street 18 or 20 years ago. The shade trees are there now some of them 8 or 10 inches in diameter or larger. When I bought my property, this open space and the street in front of my house was called 'West Street Extended.' or the 'Extension of West Street.' I had no ingress to my property below this fence, except along this avenue which had been opened." There was also evidence that the defendant, as town marshal, removed the fence as an obstruction to the street, under an order from the proper authorities of the town, which was incorporated by Private Acts 1874-75, p. 704, c. 158. Notice of 10 days was given to the prosecutor, L. C. Smith, to remove the fence before the defendant tore it down. A map of the premises was introduced which shows the extension of West street and a lot or lots fronting upon it. There was other evidence supporting the defendant's contention, and also evidence contradicting it and sustaining the theory of the state. In view of the charge of the court, it is not necessary to state it. There was a verdict of guilty and judgment was entered thereon. Defendant excepted and appealed.

If a fence obstructs a street which is a public highway, and thereby renders its use less convenient, it is an indictable nuisance.

Asst. Atty. Gen. Clement, for the State.

H. H. McLendon and T. L. Caudle, for defendant.

WALKER J.

The charge of the court was a peremptory one, by which the jury were instructed to find the defendant guilty, without any direction that they should pass upon any of the evidence or even the credibility of the witnesses. Manufacturing Co. v. Railroad, 128 N.C. 280, 38 S.E. 894. We cannot approve the form of the charge. It is for the jury to find the ultimate fact of guilt upon the evidence and under the instructions of the court as to the law. The jury were not even told that if they believed the evidence or if they found the facts to be according to the evidence, which is the better form of expression even when all the evidence bears one way, or if they found certain facts, they should then return a verdict of guilty, but were simply directed to find the defendant guilty. We have recently disapproved an instruction much less mandatory upon the jury than the one given in this case. State v. Simmons, 143 N.C. 613, 56 S.E. 701. See, also, Merrell v. Dudley, 139 N.C. 59, 51 S.E. 777; State v. Garland, 138 N.C. 675, 50 S.E. 853; State v. Barrett, 123 N.C. 753, 31 S.E. 731; Sossaman v. Cruse, 133 N.C. 470, 45 S.E. 757; State v. Green, 134 N.C. 658, 46 S.E. 761; Bank v. Pugh, 8 N. C. 206; Manufacturing Co. v. Railroad, supra.

But we think the court erred in directing a verdict, because there was evidence in the case that the place where the fence stood was a part of West street. It can make no difference in the result whether it was a part of the original street or of the extension. The question to be considered was whether the fence was built across a public street, and thereby became an obstruction to its free use by the citizens of the town. If so, the authorities of the town had not only the right, but it was their duty, to have the fence removed, under the powers vested in them by the town charter, if it constituted a nuisance, and there was evidence tending to show that the defendant himself also had the...