State v. Jenkins

• Decision Date: 10 December 1913
• Citation: 164 N.C. 527,80 S.E. 231
• Parties: STATE v. JENKINS.
• Court: North Carolina Supreme Court

80 S.E. 231

164 N.C. 527

STATE

v.JENKINS.

Supreme Court of North Carolina.

Dec. 10, 1913.

1.Criminal Law (§ 970*)—Motion in Arrest—Scope.

A motion in arrest must be based on some error or omission appearing on the face of the record, and cannot be used to raise the questions of variance, between the proof and the indictment, or of whether the proof showed the offense charged to be within the purview of the statute.

[Ed. Note.—For other cases, seeCriminal Law, Cent. Dig. §§ 2445-2462;Dec. Dig. § 970.*]

2.Boundaries (§ 56*)—Monuments—Changing Monuments.

A wooden stake, driven by a surveyor to show a boundary line between adjacent landowners, is a landmark within the purview of Kevisal, § 3674, making the removal of any landmark a misdemeanor; the statute contemplating the preservation of all marks which will show the boundaries of land.

[Ed. Note.—For other cases, seeBoundaries, Cent. Dig. §§ 280-282;Dec. Dig. § 56.*]

Appeal from Superior Court, Buncombe County; Carter, Judge.

C. L. Jenkins was convicted of crime, and he appeals.Affirmed.

Britt & Toms, of Asheville, for appellant.

Attorney General Bickett and Assistant Attorney General Calvert, for the State.

BROWN, J.The evidence for the state tended to show that the defendant owned a tract of land adjoining a tract owned by one T. L. Justice, and that, pending a sale of the land by Justice to A. B. Nix or his wife, the defendant and A. B. Nix entered into an agreement to employ a surveyor to survey and establish the dividing line.Pursuant to this agreement, the line was surveyed and the stake in question was placed, and the agreement, return of the survey, plot and order of registration are set out in the record.

The purpose of the agreement is shown by the testimony of A. A. Hamlet, the surveyor, who testified that the line was run and the stake placed on September 30, 1911; that some time between that date and July 13, 1913, the stake had been moved about two feet from where he placed it, and that the effect of the removal of the stake, if the line were changed accordingly, would be to add approximately an acre to the land of Jenkins, and to lessen that of Nix in the same amount.Other witnesses also testified to the removal of the stake.

On the question as to how the stake was moved and by whom, S. D. Williams testified: "That he knows defendantC. L. Jenkins; has known him all his (witness') life; saw defendant Jenkins stobbing a stake down at the point described by the witness Hamlet; thinks this was in the year 1911; it was the same time that witness Hamlet made the survey; thinks the time was in November, 1911, when he saw Jenkins setting the stake; * * * saw the stake driven by witness Hamlet; saw defendant gouging it down or gouging it in the ground, and the other hole was a few inches from it."

The prosecuting witness, A. B. Nix, testified on cross-examination: "That there was feeling between him and the defendant Jen-kins; that he did not intend for a man to run over him; that they are bitter enemies; he never saw the defendant remove the stake, but it had been removed; that Jenkins had come to his house with a double-barrel shotgun and nailed a notice about eight feet from one corner of his house, and swore that he would kill the witness if he crossed the path onto his own land; did not see the defendant making the line.Jenkins gave him the lie."

1.The defendant moved in arrest of judgment.The motion was properly denied.This motion was made on two grounds: First, that a wooden stake is not such a landmark as is contemplated by the statute; and, second, for alleged variance between the proof and indictment in that the agreement as to the location of the land offered in evidence by the state was entered into between the defendant and A. B. Nix, and not between the defendant and Nannie Nix, the person named in the indictment.These grounds of motion present questions which should have been raised during the trial by exceptions.A motion in arrest of judgment must be based upon some matter which appears, or for the omission of some matter which ought to appear, on the face of the record.State v. Davis, 126 N. C. 1007, 35 S. E. 464;State v. McLain, 104 N. C. 895, 10 S. E. 518;State v. Douglass, 63 N. C. 500.Variance between indictment and proof cannot be taken advantage of by motion in arrest.State v. Jarvis, 129 N. C. 698, 40 S. E. 220;State v. McLain, 104 N. C. 895, 10 S. E. 518;State v. Craige, 89 N. C. 475, 45 Am. Rep. 698.

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