State v. . Howell , 107 N.C. 835 ( 1890 )

(838) The defendant's counsel asked the court to instruct the jury that if defendant went and took possession under a bona fide claim of right, and that he believed he had a right to enter and take possession under his deed from Andrews, he could not be convicted.

The court refused this instruction, and instructed the jury that if they found the facts to be that Andrews had conveyed a fee simple in the land to Graham, and put him in possession, and Graham had rented it to Rhine, and, during the time Rhine was in possession as tenant of Graham, the defendant J. E. Howell went into the house and Rhine went out and immediately went in again as a servant of Howell, this did not transfer the possession to Howell from Graham, and that the possession of Rhine could still be the possession of Graham, and that if Rhine stayed there until 20 December, paying rent to Graham, and then left, and immediately Graham went and fastened up the house, put his tools and fodder in it, and had wheat sowed in the filed, and that if the defendant came there and burst open the door, and split off part of the facing, and took up the sleepers in one of the rooms, and put his mules in, he would be guilty; that a question of a bonafide belief that defendant was the owner and had a right to enter was not the question in this particular case; that the burden was on the State to satisfy the jury beyond a reasonable doubt of these facts, for they should acquit the defendant; that if they found the facts to be as testified to by the defendant — that he went there, found no one, and opened the (839) door without any injury to the door or house — he would not be guilty. Verdict of guilty. Judgment.

The defendant appealed. The tenant of the prosecutor in possession of the house could not, by simply going out of the same and purporting to take a lease thereof from the defendant and going back into the house professedly under such lease, thus rid himself of the relation as tenant to the prosecutor and put the latter out of possession and give the defendant the possession to the prejudice of the landlord, the prosecutor. He could put an end to his relation and possession as tenant ordinarily, and in this and like cases, only by a surrender of the possession to the landlord himself. Springs v.Schenck, 99 N.C. 551, and cases there cited. Hence, the defendant got no benefit or advantage by the supposed lease he undertook to make to the tenant of the prosecutor — it was a mere fruitless shift.

The possession of the house was in the prosecutor at the time the defendant took possession, as alleged, and defaced and injured the same. He was not there in person, but he had been lately theretofore, had stored fodder and other things in it, and had closed and fastened it by suitable fastenings. The defendant took possession of it without his permission and against his will — the evidence tended to prove that he broke the door open, defacing parts of it to some extent. If it be granted that the defendant had the better title to the house, he (840) had no right to take violent, injurious possession of it while the prosecutor was so in possession thereof. His action was unlawful, and, if done willfully, was a violation of the statute (The Code, sec. 1062), which makes it a misdemeanor to unlawfully and willfully "deface, damage or injure any house," etc. So that, although the defendant may have believed in good faith that he had the right to enter and take possession of the house, but did so unlawfully and willfully, he would be guilty. A party, no doubt, may ordinarily destroy, deface or injure his own property when it is in his possession and under his complete control — when he may make such disposition of it as he may see fit — but it is otherwise when it is in the possession of, and claimed by, others. The purpose of the statute is to prevent the unlawful and willful injury to houses and other property specified in it, no matter to whom the same may belong. A party commits no trespass — does not unlawfully destroy, deface or injure his own property, ordinarily — when he has the same in his possession and complete control, and the statute does not apply to such case. But it does apply when the injury involves a trespass and is willful. It is willful when the party does the injury charged deliberately, of purpose and without regard to whether it is done rightfully or wrongfully. The manner, the occasion, the circumstances attending the doing of the injury, make evidence going to prove that the intent was willful or otherwise. S. v. Hovis, 76 N.C. 117; S. v. Watson, 86 N.C. 626; S. v.Piper, 89 N.C. 551; S. v. Marsh, 91 N.C. 632; S. v. Whitener, 93 N.C. 590;Mosseller v. Deaver, 106 N.C. 494.

The defendant was not entitled to have the special instruction, asked for, given to the jury. The general exception to the "charge as given" was no exception. There is

No error.

Cited: S. v. McRackan, 118 N.C. 1242; S. v. Fender, 125 N.C. 651; S.v. Jones, 129 N.C. 509; S. v. Morgan, 136 N.C. 631; S. v. Taylor,172 N.C. 893.

(841)