Summary
In S. v. Smith, 24 N.C. 127, there was a material variance between the averment of the indictment of the presence of the prosecutrix and the facts found by the special verdict; in the latter case it was stated she was not present, and the Court held the variance to be fatal to a conviction, and observed in closing their opinion, "the defendant might be entrapped, if it could be held that the facts found in the latter (the special verdict) would support the charge in the indictment."
Summary of this case from State v. WalkerOpinion
December Term, 1841.
An indictment for a forcible entry into the field, of the prosecutor cannot be supported by evidence that the defendant peaceably entered the field, but while there threw stones against the house of the prosecutor, situated adjoining the field, the prosecutor at the time being in the house, and not in the field.
APPEAL from Bailey, J., at Fall Term, 1841, of ROWAN, upon a special verdict found by the jury on the trial of an indictment against the defendant for a forcible entry. The indictment was in the following words, to wit:
J. G. Bynum for the State.
Boyden for defendant.
NORTH CAROLINA, ) Superior Court of Law,) ss. ROWAN COUNTY. ) Fall Term, 1841.
The jurors for the State, upon their oath, present that James Smith, late of the said county, laborer, on 25 August, in the year aforesaid, in the county aforesaid, into one field then and there being in the seizin and possession of Nancy Lyerly, with force and arms and with a strong hand did break and enter, she, the said Nancy, then and there being present and forbidding the same, to the great injury of the said Nancy and against the peace and dignity of the State.
H. C. JONES, Solicitor.
The defendant having pleaded not guilty, the jury found the following special verdict, viz: That the prosecutrix (Nancy Lyerly) was in the possession of her dwelling-house, together with a field adjoining the same, which was inclosed; that she had shut up her house and gone to bed; that the defendant, after she had retired, entered into the field and threw stones against her house; that one broke the sash of her window and a pane of glass; that this frightened the prosecutrix, and was (128) done against her will and consent. And whether this amounts to a forcible entry into the "field" of the prosecutrix, they pray the advice of the court. If it does, they find the defendant guilty; if not, they find him not guilty.
The court, upon argument, did not consider that this amounted to a forcible entry into the field of the prosecutrix, and gave judgment for the defendant, from which judgment the solicitor for the State appealed to the Supreme Court.
We are of the opinion that the judgment of the court below was right. The defendant is only charged in the indictment with a forcible entry into the field of the prosecutrix, she then and there being present. The jury find that the field which the defendant entered was inclosed, and adjoining to the dwelling-house, and that the prosecutrix was not in the field at the time. These being the facts, he was not guilty in manner and form as charged in the indictment. It is true that the defendant was guilty of an indictable trespass, but that was not the trespass he was charged with and against which he came to defendant himself. A charge of a forcible trespass into a field, the owner then and there being present, cannot be supported by evidence that the defendant entered the field peaceably, and from thence threw stones against a dwelling-house adjoining, the owner being therein. The two cases are very different, and the defendant might be entrapped if we were to hold that such facts would support the charge in the indictment. The judgment must be
PER CURIAM. Affirmed.
Cited.: S. v. Walker, 32 N.C. 236; S. v. Laney, 87 N.C. 537.
(129)