State v. Jones

• Decision Date: 22 October 1901
• Citation: 39 S.E. 795,129 N.C. 508
• Parties: STATE. v. JONES.
• Court: North Carolina Supreme Court

39 S.E. 795

129 N.C. 508

STATE.

v.JONES.

Supreme Court of North Carolina.

Oct. 22, 1901.

TEARING DOWN BUILDING—MISDEMEANOR-ELEMENTS OF CRIME.

Code, § 1062, makes it a misdemeanor to willfully and unlawfully demolish or injure any building. Defendant, while still in possession of property which had been sold under a mortgage executed by him, pulled down a dwelling house. The defendant had full knowledge of the sale. Held, that defendant was not guilty of an offense under section 1062, as, to constitute such an offense, defendant must have been a trespasser.

Appeal from superior court, Wayne county; Starbuck, Judge.

Primus Jones was convicted of removing and destroying a certain house belonging to another, and he appeals. Reversed.

The evidence, without contradiction or conflict, showed that defendant pulled down the house, which stood on the land which he had mortgaged to Mrs. Exum to secure a debt, and that she had sold the land at publie sale under the power contained in the mortgage, and that the prosecutor, G. D. Best, became the purchaser, and she executed a deed to him, all of which took place a day or two prior to the pulling down of the house. Defendant attended the sale under the mortgage, and knew that prosecutor bought the land. When defendant began pulling down the house, the prosecutor forbade his doing so, and offered to show him his deed. Defendant said he did not care to see it, and continued pulling the house down. The deed was not registered till several days after the house was pulled down. The prosecutor was never in the actual possession of the land. Defendant had been in the actual possession for several years prior to the mortgage sale, and remained in possession after the sale, and was in possession at the time of pulling down the house. Upon this evidence defendant requested the court to charge the jury if he was in the actual possession at the time of pulling down the house. Refused. Defendant excepted. Upon the trial defendant offered to testify that Mrs. Exum had told him that he would be permitted to hold possession as long as he kept up a life insurance policy for the benefit of Mrs. Exum as mortgagee. Defendant did not offer to prove that prosecutor had knowledge of this matter. Objection to above-offered testimony sustained, and defendant excepted. Verdict of guilty. Defendant appealed from the judgment.

Brown Shepherd and the Attorney General, for the State.

FURCHES, C. J. This is an indictment under Code, § 1062, for pulling down a house.

The defendant, it seems, was the owner of the house, and mortgaged it to Mrs. Exum, with power of sale. The debt not being paid, Mrs. Exum sold, and the prosecutor, Best, bought, and took a deed therefor from the mortgagee. This sale took place a few days before the alleged offense was committed. The defendant was living in the house at the time he pulled it down, and had been for several years, as the mortgagor of Mrs. Exum. Best, the purchaser, was present when the defendant pulled down the house, offered to show the defendant his deed from the mortgagee, and forbade the defendant's pulling down the house. The defendant, who was present at the mortgage sale, said he did not want to see the deed, and proceeded to pull down the house. Neither had the prosecutor, Best, nor Mrs. Exum ever been in the actual possession of the house....