State v. . Roberts

7 S.E. 714, 101 N.C. 744

• Court: Supreme Court of North Carolina
• Decided: September 5, 1888
• Status: Published

Opinion

Davis, J.

(after stating the case.) Section 1062 of The Code, under which the defendant is indicted, declares that “ if any person shall * * *• * unlawfully and wilfully burn, destroy, pull down, injure or remove any fence, wall, or other enclosure, or any part thereof, surrounding or about any yard, garden, cultivated field or pasture * * * * every person so offending shall be guilty of a misdemeanor.”'

The defendant is charged in the indictment with injuring and removing “a part of a fence surrounding and about a cultivated field,” &c. Was the fence described in the special verdict “surrounding or about any * * cultivated field ” within the meaning of the statute ? Was it an “ enclosure ” or any part of an “ enclosure”? Was it intended to “ inclose or shut up ” the field ? It was certainly not surrounding any cultivated field. It is within the observation of all persons who have traveled over our country roads that obstructions such as posts, felled trees, &c., are frequently made use of to-prevent travelers from turning out of the road to avoid bad places, and we think such obstructions would not constitute “ fences or walls or enclosures ” within the meaning of the statute, and yet it is apparent that it was for just such purpose — not to enclose the field — that the posts and slats in question were intended. The}' were intended, not to enclose or surround the field, but to prevent-travelers from trespassing on the land by turning out of the road to avoid the-stump and hole in the road. It was not a “ fence, wall or other enclosure ” “ surrounding or about” a cultivated field within the meaning of the statute, nor a “ fence surrounding ”' any field at all, as charged in the indictment.

There is no error. Affirmed.