State v. . Smith

24 N.C. 127

Opinion

Daniel, J.

We are of the opinion that the judgment of the Court below was right. The defendant is only charged in the indictment with a forcibie entry into the field of the prosecutrix, she then and there being present. The Jury find that the field, which the defendant entered, was enclosed, and adjoining to the dwelling-house, and that the prose-cutrix was not in the field at the time. These being the facts, he was not guilty in manner and form as charged in the indictment. It is true that the defendant was guilty of an indictable trespass, but that was not the trespass he was charged with, and against which he came to defend himself. A charge of a forcible trespass into a field, the owner then and there being present, cannot be supported by evidence' that the defendant entered the field peaceably, and from thence threw stones against a dwelling-house adjoining, the • owner being therein. The two cases are very different, and the defendant might be entrapped, if we were to hold that such facts would support the charge in the indictment. The judgment must be affirmed.

Per Curiam. Judgment affirmed.