Opinion
(August Term, 1861.)
Where a party has neither possession nor a right of possession to land, he cannot, upon an indictment for unlawfully removing a fence therefrom, raise a question as to a right of entry, nor is it any defense to him that he did the act to bring on a civil suit in order to try the title.
INDICTMENT for unlawfully removing a fence, tried before Osborne, J., at Fall Term, 1860, of CLEVELAND.
Attorney-General for the State.
Gaither for defendant.
The following special verdict was found by the jury: "The fence removed was part of a fence that surrounded a cultivated field in possession of the prosecutor. A grant for the tract of land of which the field in question formed a part had issued to the ancestor of the defendant, who was his heir at law, and who, as his heir, acquired his title; that the prosecutor had been in the adverse possession of this tract for more than seven years with color of title; that the prosecutor, (398) with a part of his fence, inclosed a piece of ground belonging to the defendant of which the prosecutor had not had seven years possession, but that no part of the fence removed was on this piece; that the defendant, claiming title to the whole land covered by the prosecutor's deed, gave him notice of his intention to remove the fence on a certain day, so that an action of trespass might be brought against him to try the title to the land, and on that day, in the absence of the prosecutor and without his consent, the defendant with his slaves removed the fence."
On this verdict, the court gave judgment against the defendant, from which he appealed to this Court.
It appears from the special verdict in this case that the portion of the land from which the fence was removed was not only in possession of the prosecutor, but belonged to him by virtue of possession under color of title. No question, therefore, can be raised upon the case as to the power of the defendant in an indictment of this character to exculpate himself by showing that he had title to the land, and consequently a right of entry. Whatever may have been intended, the record fails to raise any such question, and we do not think proper to express an opinion upon it.
The only question actually presented is whether a trespass committed by the removal of a fence from land of which the defendant had neither possession nor right of possession is in case of an indictment under. The Code, ch. 34, sec. 103, defensible upon the ground that it was committed with a view to provoke a civil action only, and to try the title. The question involves no difficulty. An act in itself indictable, done by one capable of committing crime, is not exempt from criminal cognizance in our courts by the failure of the perpetrator to foresee or expect indictment. The object in committing the act can make no difference. (399) All the consequences which the law annexes to it will follow, notwithstanding inadvertence or ignorance in the perpetrator.
The section of The Code in question declares: "If any one shall unlawfully and willfully remove any fence or part of a fence surrounding a cultivated field every person so offending shall be deemed guilty of a misdemeanor." The special verdict against the defendant affirms all the facts necessary to constitute an offense, and there is nothing stated to excuse him from the consequences. If he desired to invite a civil suit to test the rights to the locus in quo, he should have taken care to confine himself to such acts as would subject him only to an action of that nature.
The judgment of the Superior Court upon the verdict is correct and should be
PER CURIAM. Affirmed.
Cited: S. v. Piper, 89 N.C. 553; S. v. Fender, 125 N.C. 651; S. v. Ruffin, 164 N.C. 417.