Summary
adopting the position that "so soon as a party is charged with a crime and bound to answer, or committed for it, that it becomes then, a public prosecution, and that the indictment is but a continuation of it; and that from that stage of it he is entitled to compulsory process for his witnesses"
Summary of this case from Turner v. United StatesOpinion
(December Term, 1851.)
A defendant may be convicted on an indictment under the act of 1846-47, forbidding the removal of fences, etc., if it appear that the ground which the fence surrounds was in a course of preparation for making a crop, or used in the course of husbandry, though no crop was actually planted or growing on it at the time of such removal.
APPEAL from Bailey, J., at Fall Term, 1851, of STANLY.
The case is sufficiently set forth in the opinion of the Court.
Attorney-General for the State.
Mendenhall for defendant.
This was an indictment against the defendant for removing a fence around the cultivated lands of the prosecutor. And the proof was that the prosecutor had cultivated the land or filed in question under a fence in 1849, and in the latter part of the year sold the land to one Arthur A. Robinson, and rented the land from said Robinson for 1850. That while there was nothing actually growing in the field, and before the ordinary time for pitching the crop, which the prosecutor had rented the land on purpose to make, the defendant removed some 50 or 100 yards of the fence surrounding the field; and the prosecutor stated that he was thereby prevented from making a crop. Defendant contended that it was necessary to his conviction that there (37) should be something actually growing in the field at the time of the removal of the fence; but the court being of a different opinion and having charged accordingly, the jury found defendant guilty, and a rule for a new trial being discharged and judgment pronounced on defendant, he prayed and obtained an appeal.
The act under which defendant was indicted declares, "That if any person or persons shall unlawfully burn, destroy, or remove any fence, wall, or other enclosure, or any part thereof, surrounding or about any yard, garden, or cultivated grounds," etc., "he, she, or they shall be deemed guilty of a misdemeanor," etc. Ired. Digest Manual, 158 — the act of 1846, ch. 70. Defendant did remove a fence, or part of it, from around a piece of ground in possession of the prosecutor, and which he had cultivated in 1849, and which, as stated in the case, he intended to cultivate in 1850. There was nothing actually growing in the field at the time of the removal, and that was done before the crop was pitched. The objection on the part of defendant is that there was no crop growing in the field at the time the alleged offense was committed. Neither the language nor the spirit of the act justify this restricted construction. The word "cultivated" may refer either to past or present time. A filed on which a crop of wheat is growing is a cultivated field, although not a stroke of labor may have been done in it since the seed was put into the ground; and it is a cultivated field after the crop is removed. It is strictly a cultivated piece of ground. Mr. Bailey, in his Dictionary, defines "cultivate" to be "To till or husband the ground; to forward the product of the earth by general industry." Here the land had been prepared for tillage by being cleared and fenced in, and a crop had actually been raised upon it the year preceding. After a crop is removed from a field, it is often very important (38) to the owner as a pasture. Can it be presumed that the Legislature intended to withdraw such a field from its protection? Our best farmers have a rotation of crops, and, after they have gone through the cycle, rest the land by letting it lie in fallow; where, so resting, it is in course of husbandry and is cultivated ground, though no crop be then on it and the owner has no intention of raising anything on it at that time. And while lying in fallow it is, according to good husbandry, important it should not be trodden by beasts of any kind. To this end the fences must be kept up. That the Legislature did not have the intention attributed to them is further evidenced in the difference in the language in legislating on another subject, but connected with this. In making fences indictable, if not of the height directed by the act, they say, "That every planter shall make a sufficient fence around his cleared ground under cultivation," etc. (Rev. Stat., ch. 48, sec. 51), and by ch. 34, sec. 42, it is declared "That all persons neglecting to keep up and repair their fences during crop time, required by the act concerning fences," etc., "shall be liable to be indicted." These statutes, though originally passed at different sessions, yet being revised and reenacted at the same session, are considered in law but one act. Chapter 48 simply subjects the person offending against its provisions to a civil remedy in favor of the individual whose stock may be injured; chapter 34 makes the omission to keep up a fence at a particular period, "during crop time," a criminal offense. With these two acts before them, it cannot be supposed the Legislature intended by the words "cultivated grounds" only such as had crops growing on them. But the grounds, to come within this meaning, must be enclosed, preparatory to being cultivated or for some purpose connected with its (39) husbandry. To fences surrounding land not cleared or intended to be cleared, the act does not extend. Why they should not enjoy the same protection I cannot well see. Every man has a right to enclose his own woodland for the range of his own stock, to prevent them from straying off and mingling with others, and for the purpose of excluding the stock of others, and he is entitled to have it protected by the law. The Legislature might have supposed the right to compensation was a sufficient safeguard; but while extending the doctrine of malicious mischief to fences around cultivated grounds, it is not easy to perceive why it was so restricted.
PER CURIAM. Judgment affirmed.
Cited: S. v. Perry, 64 N.C. 306; S. v. McMinn, 81 N.C. 588; S. v. Campbell, 133 N.C. 641; Combs v. Comrs., 170 N.C. 90.