State v. . Howell

MerRIMON, C. J.: The tenant of the prosecutor in possession of the house could not, by simply going out of the same and purporting to take a lease thereof from the defendant and going back into the house professedly under such lease, thus rid himself of the relation as tenant to the prosecutor and put the latter out of possession and give the defendant the possession to the prejudice of the landlord, the prosecutor. He could put an end to his relation and possession as tenant ordinarily, and in this and like cases, only by a surrender of the possession to the landlord himself. Springs v. Schenck, 99 N. C., 551, and cases there cited. Hence, the defendant got no benefit or advantage by the supposed lease he undertook to make to the tenant of the prosecutor — it was a mere fruitless shift. The possession of the house was in the prosecutor at the time the defendant took possession as alleged, and defaced and injured the same. He was not there in person, but he had been lately theretofore, had stored fodder and other things in it, and had closed and fastened it by suitable fastenings. The defendant took possession of it without his permission and against his will — the evidence tended to prove that he broke the door open, defacing parts of it to *840 some extent. If it be granted that the defendant had the better title to the house, he had no right to take violent, injurious possession of it while the prosecutor was so in possession thereof. His action was unlawful, and, if done wilfully, was a violation of the statute (The Oode, §1062), which makes it a misdemeanor to unlawfully and wilfully “ deface, damage or injure any house,” etc. So that, although the defendant may have believed in good faith that he had the right to enter and take possession of the house, but did so unlawfully and wilfully, he would be guilty. A party, no doubt, may ordinarily destroy, deface or injure his own property when it is in his possession and under his complete control — when he may make such disposition of it as he may see fit — but it is otherwise when it is in the possession of and claimed by others. The purpose of the statute is to prevent the unlawful and wilful injury to houses and other property specified in it, no matter to whom the same may belong. A party commits no trespass — does not unlawfully destroy, deface or injure his own property, ordinarily, when he has the same in his possession and complete control, and the statute does not apply to such case. • But it does apply when the injury involves a trespass and is wilful. It is wilful, when the party does the injury charged deliberately, of purpose and without regard to whether it is done rightfully or wrongfully. The manner, the occasion, the circumstances attending the doing of the injury make evidence going to prove that the intent was wilful or otherwise. State v. Hovis, 76 N. C., 117; State v. Watson, 86 N. C., 626; State v. Piper, 89 N. C., 551; State v. Marsh, 91 N. C., 632; State v. Whitener, 93 N. C., 590; Mosseller v. Peaver, 106 N. C., 494. The defendant was not entitled to have the special instruc1 tion asked for given to the jury. The general exception to the “charge as given” was no exception. There is no error. Affirmed.