State v. . Calloway

26 S.E. 46, 119 N.C. 864

• Court: Supreme Court of North Carolina
• Decided: September 5, 1896
• Status: Published

Opinion

MoNtgomeey, J.:

The defendant was indicted under Section 1070 of The Code (no felonious intent being charged) for the willful and unlawful entering upon the lands of -the prosecutor and carrying off wood. In his defense and to show that he entered under a bona fide claim to the land, he introduced an entry expressed as follows: “ Entry, No. 6545 — F. T. Lowdermilk enters and locates 640 acres of land in Caldwell County, N. C., on headquarters of Wilson’s creek, beginning on a pine, F. T. Louder-milk’s corner, and runs southeast 40 poles, thence northeast, and various other courses so as to include 640 acres. Entered April 24, 1890, at 9 a. m.

F. T. LOUDERMÍLK.”

No survey was ever made under the alleged entry, and no grant made by the State. The defendant admitted that the land on which he entered adjoined those of the prosecutor. The court instructed the jury “ that the entry was not sufficient ground upon which to predicate a bona fide claim on the part of the defendant.” There was no error in the giving of this instruction to the jury. There was no sort of compliance by the defendant with the law in regard to the entry of public lands. The exception to the ruling of his Honor on the question of evidence becomes immaterial. The defendant had no defense.

No Error.