State v. Whitener

• Decision Date: 31 October 1885
• Citation: 93 N.C. 590
• Court: North Carolina Supreme Court
• Parties: STATE v. R. C. WHITENER.

93 N.C. 590

STATE

v.R. C. WHITENER.

Supreme Court of North Carolina.

October Term, 1885.

INDICTMENT for injury to a house by a tenant, tried before Avery, Judge, and a jury, at Fall Term, 1885, of BURKE Superior Court.

The indictment was preferred under §1761 of The Code, which forbids any tenant, who shall, during his term, or after its expiration, wilfully and unlawfully demolish, destroy, deface, injure or damage any tenant house, inhabited house, or other out-house belonging to his landlord or upon his premises, by removing parts thereof, &c. The evidence shows that the defendant had been a tenant from year to year of Mrs. M. R. Caldwell, for four years prior to the 1st of January, 1885, and that he removed the sash from two windows in December, 1884. That the sashes were fastened into the windows by a strip, like that ordinarily used in fastening the sash into a window. The strips were held by shingle nails, driven about half up into the wood, which were pulled out by the defendant, and the sash taken out. The defendant proposed to prove, that there was no sash in the windows when he went into the occupancy of the house under his lease, and that he borrowed the sash from his brother, about two years before the removal, and hauled them away with his furniture when he gave up the possession, and subsequently returned them to his brother. This evidence was objected to by the Solicitor, and was excluded by the Court, to which the defendant excepted. The counsel for the defendant asked the Court to charge the jury, that under the facts of the case as found and admitted, the defendant could not be convicted; but the Court refused to give the instructions, and charged the jury that upon the facts admitted to be true, the defendant was guilty. The defendant excepted--there was judgment against him, and he appealed.

Attorney General, for the State .

Mr. S. J. Erwin, for the defendant .

ASHE, J., (after stating the facts).

This case was before us heretofore, and reported in volume 92 at page 798. The act of 1883, §1761 of The Code, under which the indictment was found, was inadvertently overlooked by the Court, in consequence of not being placed under the title of Crimes, and not having been called to the attention of the Court at the time. We think it was altogether proper for the Court below, in discovering the mistake, to submit the matter to the jury with instructions under §1761. But we are of opinion there was error in the instructions given, and the refusal to admit the evidence proposed by the defendant, with respect to the circumstances under which the sash was placed into the window and taken out. The evidence, we think, had a material bearing on the criminality of the act. The facts as found and admitted, clearly bring the act of the defendant within the words of the statute, but they do not bring him within its meaning and spirit. The indictment, following the statute, charges that the act of removing the sash, was unlawful and wilful. Conceding it to have been unlawful, it does not follow that it was wilful. The word wilful, used in a statute creating a criminal offence, means something more than an intention to do a thing. It implies the doing the act purposely and deliberately, indicating a purpose to do it, without authority--careless whether he has the right or not--in violation of law, and it is this which makes the criminal intent, without which one cannot be brought within the meaning of a criminal statute. In The State v. Roseman, 66 N. C., 634, where the defendants were indicted for unlawfully and wilfully demolishing a public school house, and they offered some evidence of their possession under a person who claimed title to the locus in quo, which was rejected by the Court, READE, J., speaking for this Court, said: “If the defendants were in the adverse possession of the school house, and bona fide claiming it as their own, it certainly was not a crime in them to pull it down. It was important, therefore, for them to prove that fact, for the words of the statute are ‘unlawfully and wilfully’ demolish, &c. Upon the supposition that the record which was offered and rejected, was not sufficient evidence of title upon an issue directly involving title, it was certainly evidence tending to explain the possession of the defendants, and the bona fides of what they did.”

The object of the Act of 1866, The Code, §1120, was to keep off intruders, and subject them to indictment if they invaded the possession after being forbidden, and when a person believing land to be vacant, made an entry, procured a warrant and survey, and entered upon land in possession of another, it was held, that although the land was not vacant, he was not guilty of a civil or forcible trespass. State v. Hanks, 66 N. C., 613. If one, under a claim, enters upon land in possession of another, after being forbidden to do so, he was held not to be guilty of a wilful trespass. State v. Ellen, 68 N. C., 281. If one enters upon the land of another under a bona fide claim of right, he is guilty of...