State v. . Godwin

Nov 6, 1907
Versions:145 N.C. 461
59 S.E. 132
1907 N.C. LEXIS 321
WalKee, L,

after' stating the case: The charge of the Court was a peremptory one, by which the jury were instructed to find the defendant guilty, without any direction that they should pass upon any of the evidence or even the credibility of the witnesses. We cannot approve the form of the charge. Manufacturing Co. v. Railroad, 128 N. C., 284, 285. It is for the jury to find the ultimate fact of guilt upon the evidence and under the instructions of the Court as to the law. The jury were not even told that, if they believed the .evidence or if they found the facts to be according to the evidence, which is the better form of expression, even when all the evidence bears one way, or if they found certain facts, they should then return a verdict of guilty, but Avere simply directed to find the defendant guilty. We have recently disapproved an instruction much less mandatory upon the jury than the one given in this case. State v. Simmons, 143 N. C., 613. See, also, Merrell v. Dudley, 139 N. C., 59; State v. Garland, 138 N. C., 675; State v. Barrett, 123 N. C., 753; Sossaman v. Cruse, 133 N. C., 470; State v. Green, 134 N. C., 658; Bank v. Pugh, 8 N. C., 206; Manufacturing Co. v. Railroad, supra; State v. Railway, post.

*464 Blit we think the Court erred in directing a verdict, because there was evidence in the case that the place where the fence stood was a part of West Street. It can make no difference in the result whether it was a p.art of the original street or of the extension. The question to be considered was whether the fence was built across a public street and thereby became an obstruction to its free use by the citizens of the town. If so, the authorities of the town had not only the right, but it was their duty to have the fence removed, under the powers vested in them by the town charter, if it constituted a nuisance; and there was evidence tending to show that the defendant himself also had the right to remove it, irrespective of the order to do so. Wolf v. Pearson, 114 N. C., 621; State v. Parrott, 71 N. C., 311; State v. Dibble, 49 N. C., 107. If the fence obstructed the-street, which is a public highway, and thereby rendered its use less convenient, it was an indictable nuisance. State v. Whitaker, 66 N. C., 630; State v. McIver, 88 N. C., 686; State v. Long, 94 N. C., 896; State v. McCarson, 8 N. C., 446; State v. Hunter, 27 N. C., 369; State v. Smith, 100 N. C., 550; State v. Eastman, 109 N. C., 785; Revisal, sec. 3784 (Code, sec. 2065). And such a nuisance is abatable by the town authorities charged with the duty of keeping the streets open and in proper repair, and also by any person who is annoyed or injured by it. State v. Higgs, 126 N. C., 1023; State v. Parrott, 71 N. C., 311; Wolfe v. Pearson, 114 N. C., 634; Hester v. Traction Co., 138 N. C., 293.

The questions whether the fence was of such a description, with reference to the character- of the land it surrounded, as to come within the terms of the statute and the indictment thereunder (State v. Biggers, 108 N. C., 763), and whether the land had been dedicated by L. L. Polk to the use of the public for a street, and perhaps others, were for the consideration of the jury upon the evidence and under proper instructions of the Court as to the law. The question of dedication *465 may depend somewhat upon whether L. L. Folk platted the ground and in the map described this street, .and thereafter sold lots fronting on it, as the defendant’s testimony, if true, might convince the jury was done. Moose v. Carson, 104 N. C., 434; State v. Fisher, 117 N. C., 740; Smith v. Goldsboro, 121 N. C., 355; Hughes v. Clark, 134 N. C., 460; Milliken v. Denny, 135 N. C., 22.

It may be inferred, from what was said on the argument and what we find in the briefs, that the Court charged as it did because it was thought not to be necessary to shoAv any criminal intent, the doing of the prohibited act being sufficient if it was done intentionally, and that the question of title was not in controversy. But this was not the only point upon which the case should have turned. If it was a public street and the prosecutor obstructed it, to the inconvenience and detriment of the public, the defendant could rightfully remove it, if himself annoyed or prejudiced by the obstruction, or he could lawfully do so if acting under the order of the proper authorities, whose duty it was to keep it open. Possession of the street by any one claiming it adversely cannot divest or destroy the right of the public therein. Acts of 1891, ch. 224; Bevisal, sec. 389. The Court, in Moose v. Carson, 104 N. C., at p. 434, seems to have overlooked what was decided in State v. Long, 94 N. C., 896, with respect to the effect of adverse possession of a highway upon the right of the public or the citizen therein prior to the act of 1891.

The material questions raised in this case should be submitted to a jury, and a new trial is ordered for that purpose.

New Trial.