State v. . Hause

Settle, J. The manifest object of the act entitled “An act to prevent willful trespasses upon lands and stealing any kind of property therefrom,” in the forcible language of Judge BoxdeN, in the State v. Hanks, 66 N. C. Rep. 612, was to keep oil “interlopers” and to subject them to indictment if they invaded the possession after they had been forbidden to do so. If one commits a trespass upon the land of another, his good faith in the matter or ignorance of the true right or title will not exonerate him from civil responsibility for the act. But when the statute affixed to such a trespass the consequences of a criminal offence, we will not presume that the Legislature intended to punish criminally acts committed in ignorance, by accident, or under claim of right, and in the Toona fide belief that the land is the property of the trespasser, unless the terms of the statute forbid any other construction. State v. Dodson, 6 Caldwell. The record in this case states that the title to the land on which the alleged trespasses have been committed is in dispute between the defendant and the prosecutor. An attempt to try the title to land by an indictment under the statute in question, would be a perversion of its use and an abuse of the State’s prerogative, which should not be tolerated by the Courts. The defendant’s counsel requested his Honor to instruct the jury, “ that it was not necessary for the defendant to have the legal right to travel the roads described in the evidence, bu *521 that if he believed he had the right because he, and the prior occupants of his land, had been using the road for fifteen or sixteen years, and that prior occupants had been crossing this angle of land at difierent points for thirty years, without any objection on the point of the prosecutor — that if .he believed that this long usage gave him a license to travel these roads, notwithstanding he might be mistaken, he would not be guilty.” To these instructions we think he was entitled. Eor, conceding it to be a civil trespass, still if the guilty intent was wanting and the entry was made- under a bona fide claim of right, the defendant was not criminally guilty. But his Honor charged the jury, “ that if the defendant had used the road for thirty years, it gave him a license to travel over it, but that fifteen or sixteen years would not,” thus cutting off from their consideration the view that the defendant may have acted on a bona fide belief that the user of the road for fifteen or sixteen years gave him a license to travel over it. Nor is this error cured by what follows in the charge, “ that if the defendant had reasonable ground to believe that the land was his, and did so believe, he had a right to cut timber on the land; otherwise, he did not.” This instruction was not responsive to the prayer, but was . calculated to mislead the jury. We have often said that the Court need not respond in the exact language of the prayer, but a failure to give, in substance, the instruction prayed for, if the defendant be entitled to it, is error. There must be a venire de novo. State v. Ellen, 68 N. C. Rep. 281; State v. Whitehurst, 70 N. C. Rep. 85. Pee Cueiam. Venire de novo.