State v. Sherrill
Decision Date | 30 June 1879 |
Citation | 81 N.C. 550 |
Court | North Carolina Supreme Court |
Parties | STATE v. JOHN SHERRILL and others. |
OPINION TEXT STARTS HERE
INDICTMENT for a Misdemeanor, tried at Spring Term, 1879, of CALDWELL Superior Court, before Graves, J.
The facts appear in the opinion. Verdict of guilty, judgment, appeal by the defendants.
Attorney General, for the State .
No counsel in this court for the defendants.
The defendants were indicted at spring term, 1878, of Caldwell superior court, and the bill of indictment is as follow: “The jurors for the state upon their oaths present that Philo Sherrill, John Sherrill, David Brinkley and Van Teague, on the first day of September, 1877, in the county aforesaid, with force and arms and a strong hand, did assemble together to disturb the peace, and being so assembled together, they the said Philo Sherrill, John Sherrill, David Brinkley and Van Teague, with force and arms and a strong hand, into a certain enclosure surrounding the dwelling house of Goodwin Harris in the county aforesaid, did break and enter; and then and there, at and against the said dwelling house of him the said Goodwin Harris, the wife, children and servants of the said Goodwin Harris being in the said dwelling house, at and against the said dwelling house, unlawfully and against the will of him the said Goodwin Harris, his wife, children and servants, did cast, throw and hurl a great number of stones and other missiles, and unlawfully, forcibly, and with a strong hand, and in a violent and tumultuous manner did pull down the fence and enclosure surrounding and about the said dwelling house, to the great terror and affright of the wife, children and servants of the said Goodwin, and against the peace and dignity of the state.” It was found and presented a true bill as to all the defendants except Van Teague; and at spring term, 1879, of said court, the defendants moved to quash the indictment. The motion was overruled and the defendants plead not guilty, and upon the trial were found guilty. They then moved for a new trial, which was refused by the court, and they appealed.
The statement of the case by His Honor shows that upon the trial before the jury, evidence was offered tending to show that the premises upon which the alleged trespass was committed, were in possession of one Lewis; that he himself was absent; that his son and son's wife who were members of said Lewis' family, together with another son and his wife who were visitors, were in the house;...
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State v. Cooke
...other than the person named in the warrant or bill, there is a fatal variance. Such has been the holding in forcible trespass, State v. Sherrill, 81 N.C. 550; in trespass after being forbidden, State v. Baker, supra; in malicious injury to property, State v. Hicks, 233 N.C. 31, 62 S.E.2d 49......
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Branch v. State
... ... 628; Gandy v. State, 27 Neb ... 707, 43 N.W. 747, 44 N.W. 108; State v. English, 67 ... Mo. 136; Lewis v. State; 90 Ga. 95, 15 S.E. 697; Irwin v ... State, 117 Ga. 722, 45 S.E. 59; People v ... Hughes, 41 Cal. 234; United States v. Howard, ... 26 Fed. Cas. 388, No. 15103; State v. Sherrill, 81 ... N.C. 550 ... My view ... of the law of the case is that there was a fatal variance ... between the allegation of the information and the proof ... offered in support of the same, and that advantage of such ... variance was duly taken by the accused, and, therefore, that ... ...
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State v. Hicks
...to property it is necessary to lay the property truly, and a variance in that respect is fatal.' State v. Hill, 79 N.C. 656; State v. Sherrill, 81 N.C. 550. In the last cited case the defendant and others were indicted for trespass upon the premises of one Harris, whereas the evidence revea......
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