49 S.E. 163 | N.C. | 1904
Lead Opinion
The defendants were indicted for removing and selling tobacco made by them as tenants on the lands of the prosecutor without having satisfied the liens thereon or giving five days’ notice of such removal and sale, as required by section 1759 of The Code. There was no controversy in regard to the terms of the lease. The defendants admitted the removal and sale of the tobacco. The defense is set forth in the exceptions. Erom a judgment based upon a verdict of guilty they appealed.
There was evidence tending to show that before the removal of any part of the crop the prosecutor consented to the
The defendants offered to show that they had sustained damage’ by reason of the failure of the landlord to comply with the contract; that such damage amounted to more than the rents and advancements. The Court, upon objection by the State, excluded the testimony so far as it affected the rents. Defendants excepted. The counsel for defendants insist that the testimony was competent as settled by this Court in State v. Neal, 129 N. C., 692. In that ease the defendant, being on trial for the same offense, was permitted to show that he had sustained damage by reason of the failure of the landlord to repair the house on the premises as he had contracted to do. That he contracted for the use of twenty-five acres and was permitted to cultivate only fifteen acres. It is not easy to distinguish the two cáses. It is evident that the majority of the Corirt were impressed with the hardship of the statute construed as contended for by the State. Mr. Justice Douglas, in a concurring opinion, speaks of “the hardship which might result to the tenant” by permitting him to be convicted when he might be able to show that he did not owe the landlord. The statute is very explicit in prohibiting the removal of any par.t of the crop until the liens are satisfied or “before satisfying all liens,” unless the tenant shall give five days’ notice. The language of the statute would seem to be capable of a construction prohibiting such removal without regard to the satisfaction of the liens unless the notice was given. This Court has construed it otherwise. State v. Crowder, 97 N. C., 432. While we should always avoid giving to a criminal statute a construction in case of doubt, which makes its operation harsh or oppressive, we may not disregard the plain expression of the legislative will because we may think it harsh or even unjust. We do not think
While we hold the law to be as stated, we are embarrassed . in applying this ruling to this case. It may be that these defendants have acted upon the advice of counsel based upon
New Trial.
Concurrence Opinion
concurring in result. I still adhere to the principles asserted in my concurring opinion in Neal’s case, as it seems proper that all statutes should, as far as possible, be construed in accordance with natural justice. Section 1759 of The Code provides that “Any lessee or cropper, or the assigns of either, or any other person, who shall remove said crop or any part thereof from such land without the con
It will be noticed that the conjunction “and” is used in connecting the three acts constituting the offense, which, therefore, depends upon the concurrence of all three of the conditions. If consent is obtained, or notice is given, or the liens are paid, there can be no offense, as one of its essential conditions is lacking. The evident purpose of the statute is to secure the payment of all liens; and if such liens are paid, its essential object is fully accomplished.
The record states that “The defendants offered to prove that they had suffered damage by reason of the prosecutor not complying with his contract in excess of the advancements and the rents. The Court said he would permit the evidence to set-off the advancements made by the prosecutor, but exclude its application to set-off the rents.” I do not clearly see the distinction between rents and advancements. In either aspect I do not see why a defendant may not be permitted to plead a just indebtedness arising out of the same transaction of rehting. This would be a valid set-off or counter claim in a civil action, and would prevent any recovery by the landlord. Of course the tenant would act at his own peril and would be criminally liable if he failed to make good his defense; but it seems to me that he should have the opportunity of presenting it. Whether the landlord was in fact liable in any amount to the defendants in the case at-bar is immaterial to the consideration of this question. We must assume he was, as they were refused the opportunity of proving the fact. It did the defendants no good to permit them to set-off their claims against the advancements if they were held criminally liable for the rents. Land-owners are justly entitled to the equal protection of the law; but I do not feel
Lead Opinion
The defendants were indicted for removing and selling tobacco made by them as tenants on lands of the prosecutor without having satisfied the liens thereon or giving five days' notice of such removal and sale, as required by section 1759 of The Code. There was no controversy in regard to the terms of the lease. The defendants admitted the removal and sale of the tobacco. The defense is set forth in the exceptions. From a judgment based upon a verdict of guilty they appealed.
There was evidence tending to show that before the removal of any part of the crop the prosecutor consented to the sale of several loads of tobacco to get money to save the balance. (675) Thereafter the defendants removed and sold the balance of the crop and retained the proceeds.
The defendants offered to show that they had sustained damage by reason of the failure of the landlord to comply with the contract; that such damage amounted to more than the rents. The Court, upon objection by the State, excluded the testimony so far as it affected the rents. Defendants expected. The counsel for defendants insist that the testimony was competent as settled by this Court in S. v. Neal,
While we hold the law to be as stated, we are embarrassed in applying this ruling to this case. It may be that these defendants have acted upon the advice of counsel bases upon the decision of this Court in S. v. Neal, supra. If so, to try (677) them by the law as herein announced would be an injustice. While it is true that no man has a vested right in a decision of the Court, it is equally well settled that where, in the construction of a contract or in declaring the law respecting its validity, the Court thereafter reverses its decision, contractual rights acquired by virtue of the law as declared in the first opinion will not be disturbed. We have diligently searched for authority by which courts have been governed in cases such as the one before us. We find nothing very satisfactory. In view of the peculiar conditions with which we are dealing, we have deemed it but just to the defendants, and not at variance with any authority in this Court, to order a new trial, with the direction that the testimony offered in this case, in so far as it is made admissible by the ruling of this Court in S. v. Neal, be admitted. If the defendants shall be able to establish their defense in accordance with the ruling in Neal's case they are entitled to do so, but the construction now put upon the statute will be applied to all future cases. While, as we have said, we find no authority directly in point, we think this course is sustained by what is said in Wells on Stare Decisis, 566. See also Township v. State,
New Trial.
