From Casetext: Smarter Legal Research

State v. Cooke

Supreme Court of North Carolina
Jun 1, 1957
246 N.C. 518 (N.C. 1957)

Opinion

Filed 28 June, 1957.

1. Trespass 9 — While redress for unauthorized entry on lands of another was by civil action at common law, forcible trespass, G., S. 14-126, and trespass after being forbidden to enter, G.S. 14-134, are made crimes by the statutes, but in any criminal prosecution possession is an essential element of the offense, and it is required that the warrant or bill of indictment allege the rightful owner or possessor, and that proof correspond with the charge.

2. Criminal Law 14 — On appeal from conviction in an inferior court to the Superior Court, defendants must be tried for the identical crime of which they were convicted in the inferior court, and the Superior Court may try them for a different crime only upon a bill found or waived.

3. Indictment and Warrant 15 — While the Superior Court, on appeal from an inferior court, has power to amend the warrant to make accurate and sufficient the statement of the crime asserted or attempted to be asserted, the court has no power to permit an amendment which results in the charge of an entirely different crime from the one of which defendant was convicted in the lower court.

4. Same: Trespass 10 — On appeal to the Superior Court from conviction on a warrant charging trespass on the property of one person after being forbidden, in violation of G.S. 14-134, the allowance of an amendment to charge the property was in the possession of a different person results in the charge of an entirely different crime and constitute a fatal variance.

5. Criminal Law 56 — Where it appears upon the face of the record that the warrant was amended in the Superior Court on appeal from conviction in an inferior court so as to charge an entirely different crime, the record discloses a fatal defect of which the Court must take note ex mero motu.

6. Criminal Law 23 — Where defendants are tried in the Superior Court upon a warrant amended to charge a different crime, without bill found or waived, the State may thereafter proceed upon new warrants.

APPEALS by defendants from Burgwyn, E. J., December 1956 Criminal Term of GUILFORD (Greensboro Division).

Attorney-General Patton and Assistant Attorney-General Giles for the State.

J. Kenneth Lee, Major S. High, C. O. Pearson, and William A. Marsh, Jr., for defendant appellants.


PARKER, J., concurring.


On 7 December 1955 six warrants issued from the Greensboro Municipal-County Court on affidavit of Ernest Edwards charging the defendants therein named "did unlawfully and willfully trespass upon the property of Gillespie Park Golf Course, Greensboro, North Carolina, after having been forbidden to do so." The cases were heard in the Municipal-County Court on 6 February 1956. Each defendant was found guilty, and from the sentence imposed each appealed to the Superior Court. The cases were by consent consolidated for trial in the Superior Court.

Ernest Edwards, on whose affidavit the warrants issued, testified: "I'm employed as a golf professional manager of the Gillespie Park Golf Club, Incorporated. The golf club is an 18-hole club with club house. It's located on Asheboro Street and Randolph Avenue on the new Super Highway . . . . Back on the 7th day of December, 1955, I was employed as manager of Gillespie Park Golf Course, Incorporated. At that time one of my functions was to operate the Gillespie Park Golf Course."

He was asked: "On that date, the 7th day of December, 1955, state whether or not the corporation was in possession of the Gillespie Park Golf Course. A. It was."

Witness testified that defendants, on the date named, over his protest, played golf on the course.

When the State rested, defendants moved for nonsuit. Before the motion was heard, the solicitor asked the court to reopen the case so that he might make a motion to amend the warrants. His request was granted; whereupon, over the objection of defendants, the warrants were amended to read: "Did unlawfully and willfully enter and trespass upon the premises of Gillespie Park Golf Club, Inc., after having been forbidden to enter said premises and not having a license to enter said premises against the statute in such cases made and provided and against the peace and dignity of the State." (Italics added.)

After the warrants were amended, defendants offered a lease by the City of Greensboro to Gillespie Park Golf Course, Inc., dated 7 April 1949, for a term of one year, of the city's club house and golf course. Renewals of this lease were offered in evidence, the last renewal bearing date 2 April 1953 extending lessee's term to 6 April 1958.

The jury returned a verdict of guilty as to each defendant. Judgments were entered on the verdicts and defendants appealed.


The crime of which defendants stand convicted is the entrance without a bona fide claim of right on land in the possession of another after having been forbidden to so enter. The act is made a crime by statute, G.S. 14-134. The statute carries the heading "Trespass on land after being forbidden . . ."

". . . every unauthorized, and therefore unlawful, entry into the close of another, is a trespass." Dougherty v. Stepp, 18 N.C. 371; Armstrong v. Armstrong, 230 N.C. 201, 52 S.E.2d 362; Lee v. Stewart, 218 N.C. 287, 10 S.E.2d 804; Brame v. Clark, 148 N.C. 364.

By the common law an unauthorized entry on the lands of another was redressed by civil action, but where the entry was made by means of force or threats apt to disrupt the peace, the trespass was made a crime in England prior to Sir Walter Raleigh's ill-fated attempt to establish a colony on our shores. Such a disturbance of possession is a statutory crime under our laws. G.S. 14-126. To convict one of the crime of forcible trespass, it is essential for the State to establish an entry with such force as to be "apt to strike terror" to the prosecutor whose possession was disturbed. It is necessary to allege and establish actual possession in the prosecutor. S. v. Simpson, 12 N.C. 504; S. v. McCauless, 31 N.C. 375; S. v. Ray, 32 N.C. 39; S. v. Laney, 87 N.C. 535; S. v. Davenport, 156 N.C. 597, 72 S.E. 7. Whether the right to possession was a good defense at common law was left unsettled in S. v. Ross, 49 N.C. 315.

In 1866 the Legislature made it a crime to invade possession even though the forbidden entry was made without force or threats. Good faith in making the entry is a defense. S. v. Wells, 142 N.C. 590; S. v. Crosset, 81 N.C. 579; S. v. Hause, 71 N.C. 518; S. v. Hanks, 66 N.C. 612. But possession is an essential element of the crime. If the State fails to establish that prosecutor has possession (actual or constructive) no crime has been established. S. v. Baker, 231 N.C. 136, 56 S.E.2d 424; S. v. Faggart, 170 N.C. 737, 86 S.E. 31; S. v. Yellowday, 152 N.C. 793, 67 S.E. 480; S. v. Whitehurst, 70 N.C. 85.

Where an interference with the possession of property is a crime, it is necessary to allege in the warrant or bill of indictment the rightful owner or possessor of the property, and the proof must correspond with the charge. If the rightful possession is in one other than the person named in the warrant or bill, there is a fatal variance. Such has been the holding in forcible trespass, S. v. Sherrill, 81 N.C. 550; in trespass after being forbidden, S. v. Baker, supra; in malicious injury to property, S. v. Hicks, 233 N.C. 31, 62 S.E.2d 497; S. v. Mason, 35 N.C. 341; in larceny, S. v. Law, 227 N.C. 103, 40 S.E.2d 699; S. v. Harris, 195 N.C. 306, 141 S.E. 883; S. v. Harbert, 185 N.C. 760, 118 S.E. 6. See also Adams v. State, 119 So. 189 (Miss.); Brown v. State, 85 S.E. 262 (Ga.); 87 C.J.S. 1113; 42 C.J.S. 1054; 27 Am. Jur. 649.

On the appeal defendants could only be tried for the crime for which they were convicted in the Municipal-County Court, viz., disturbing the possession of Gillespie Park Golf Course. The Superior Court could try them for a different crime upon a bill found or waived. S. v. Mills, 242 N.C. 604, 89 S.E.2d 141; S. v. Banks, 241 N.C. 572, 86 S.E.2d 76; S. v. Hall, 240 N.C. 109, 81 S.E.2d 189; S. v. Thomas, 236 N.C. 454, 73 S.E.2d 283; S. v. Mills, ante, 237.

The Superior Court has broad power to allow amendments to warrants. This power to amend is the power to make accurate and sufficient the statement of the crime asserted or attempted to be asserted. The court has no power to permit a warrant to be amended so as to charge an entirely different crime from the one on which defendant was convicted in the lower court. S. v. McHone, 243 N.C. 231, 90 S.E.2d 536; S. v. Clegg, 214 N.C. 675, 200 S.E. 371; S. v. Goff, 205 N.C. 545, 172 S.E. 407; S. v. Taylor, 118 N.C. 1262.

When the court permitted the warrants to be amended so as to charge a trespass on property of a person (Gillespie Park Golf Club, Inc.) other than property of the person named in the original warrant, it substituted one criminal charge for another criminal charge. This different crime could only be charged by bill found or waived. The defendants have not waived bills.

The record discloses the fatal variance. It is our duty to note it. S. v. Scott, 237 N.C. 432, 75 S.E.2d 154; S. v. Stonestreet, 243 N.C. 28, 89 S.E.2d 734; S. v. Strickland, 243 N.C. 100, 89 S.E.2d 781. Defendants may, of course, now be tried under the original warrant since the court was without authority to allow the amendment changing the crime charged; or they may be tried on bills found in the Superior Court for the crime attempted to be charged by the amendment. S. v. Strickland, supra; S. v. Hicks, 233 N.C. 511, 64 S.E.2d 871; S. v. Sherrill, 82 N.C. 694.

The judgment is

Arrested.


Summaries of

State v. Cooke

Supreme Court of North Carolina
Jun 1, 1957
246 N.C. 518 (N.C. 1957)
Case details for

State v. Cooke

Case Details

Full title:STATE v. PHILLIP COOKE. STATE v. LEON WOLFE. STATE v. GEORGE SIMKINS, JR…

Court:Supreme Court of North Carolina

Date published: Jun 1, 1957

Citations

246 N.C. 518 (N.C. 1957)
98 S.E.2d 885

Citing Cases

State v. Spivey

As established in Mason, even if a statute prohibiting injury to some property does not state that the…

Wolfe v. North Carolina

On the same date the Supreme Court of North Carolina, acting on the appeal from the criminal convictions in…