This case was before us heretofore, and reported in Vol. 92, at p. 798. The Act of 1883, sec. 1761 of The Code, under which the indictment was found, was inadvertently overlooked by the court, in consequence of not being placed under the title of Crimes, and not having been called to the attention of the court at the time. We think it was altogether proper for the court below, in discovering the mistake, to submit the matter to the jury with instructions under sec. 1761. But we are of opinion there was error in the instructions given and the refusal to admit the evidence proposed by the defendant, with respect to the circumstances under which the sash was placed into the window and taken out. The evidence, we think, had a material bearing on the criminality of the act. The facts as found and admitted clearly bring the act of the defendant within the words of the statute, but they do not bring him within its meaning and spirit. The indictment, following the statute, charges that the act of removing *Page 499 the sash was unlawful and willful. Conceding it to have (592) been unlawful, it does not follow that it was willful. The word willful, used in a statute creating a criminal offense, means something more than an intention to do a thing. It implies the doing the act purposely and deliberately, indicating a purpose to do it without authority — careless whether he has the right or not — in violation of law, and it is this which makes the criminal intent without which one cannot be brought within the meaning of a criminal statute. In S. v.Roseman, 66 N.C. 634, where the defendants were indicted for unlawfully and willfully demolishing a public schoolhouse, and they offered some evidence of their possession under a person who claimed title to the locusin quo, which was rejected by the court, Reade, J., speaking for this Court, said: "If the defendants were in the adverse possession of the schoolhouse, and bona fide claiming it as their own, it certainly was not acrime in them to pull it down. It was important, therefore, for them to prove that fact, for the words of the statute are `unlawfully andwillfully' demolish, etc. Upon the supposition that the record, which was offered and rejected, was not sufficient evidence of title upon an issue directly involving title, it was certainly evidence tending to explain the possession of the defendants and the bona fides of what they did."
The object of the Act of 1866, The Code, sec. 1120, was to keep off intruders and subject them to indictment if they invaded the possession after being forbidden, and when a person believing land to be vacant, made an entry, procured a warrant and survey, and entered upon land in possession of another, it was held that, although the land was not vacant, he was not guilty of a civil or forcible trespass. S. v. Hanks,66 N.C. 613. If one, under a claim, enters upon land in possession of another, after being forbidden to do so, he was held not to be guilty of awillful trespass. S. v. Ellen, 68 N.C. 281. If one enters upon the land of another under a bona fide claim of right, he is guilty of no criminal offense, S. v. Crosset, 81 N.C. 579; so if one enter or travel over the land of another, under a bona fide claim of right, it was held (593) he was not criminally guilty of a trespass under the statute, although he was mistaken in his right, but believed he had the right to do so, because he and the former owners of the land had done so for sixteen years, S. v. Hause, 71 N.C. 518, and in a Tennessee case, S. v. Dodson, 6 Caldwell, which was an indictment under a statute similar to our Act of 1866, the Court say: "If one commit a trespass upon the land of another, his good faith or ignorance of the true right or title will not exonerate him from civil responsibility for the act. But when the statute affixed to such a trespass the consequence of a criminal offense, we will not presume that the Legislature intended to punish *Page 500 criminally, acts committed in ignorance, by accident, or under claim of right and in the bona fide belief that the land is the property of the trespasser, unless the terms of the statute forbid any other construction."
But it is contended on the part of the State that the case of S. v.Bryson, 81 N.C. 595, if it does not overrule the decisions of the Court as above cited, at least qualifies them so that they can have no application to this case. But we have carefully reviewed that case and think it is in no way in conflict with them. In Bryson's case the defendant asked the court to charge the jury that if the defendant believed he had the right to enter or travel over the prosecutor's land, because he and the former owners and tenants of the land had done so for ten or eighteen years, he would not be guilty. The fact was that the only user of the way through the prosecutor's land by the defendant and those under whom he claimed was just before the commencement of the action, and he had been forbidden to do so.
This Court held that there was no error, and the reason given was that "if a party be indicted for a trespass on land, and in the proof there be no evidence of a claim of title or such facts and circumstances upon which he could reasonably and bona fide believe he had a right to do what he did, the court will not submit an inquiry to the jury as to a mere abstraction, and therefore we hold there was no (594) error in the refusal to charge the jury as requested."
The gist of the decision is that to constitute a valid defense in such a case, there must be a claim of title or facts shown upon which the defendant could reasonably and bona fide believe he had the right. Now to apply the principle enunciated in these cases, and even in the last. The defendant Whitener offered to show that the windows had no sash in them when he entered the house under his lease, and about two years before he removed them he borrowed the sash from his brother and put them in, where they remained until just before the expiration of the lease, when he took them out by drawing a few small shingle nails with which the strips holding them in were fastened. Did not the defendant have a reasonable ground to believe that the sash belonged to his brother, and that as they had been loaned to him for his own use, it was his right and duty to take them out and return them? We venture to say that there is not a man, who is not a lawyer, that would hesitate to say he certainly had the right to do so, and even a lawyer, under the more recent authorities upon the subject, might be excused for holding that a tenant has the right to remove, during the continuance of his term, such fixtures as he may have made to the freehold for his convenience and comfort. The question has never been decided in this State in any case where the question was directly presented as to the rights of a tenant to remove such annexations to the land. But it has *Page 501 been so held in New York and Massachusetts. King v. Wilcomb, 7 Barb., 263, 266, and Ware v. Hinds, 4 Gray, 256, 270, 271. And Tyler, in his work on Fixtures, after reviewing these and other authorities, and in view of the general tendency of the courts in relaxing the principles of the common law with regard to tenants, gives it as his opinion that the question whether annexations to the freehold by tenants were removable would depend on circumstances. For instance, he says, "If the house was destitute of windows when the tenant took his lease, and the openings were filled for his own use and convenience, he would doubtless have the right to take them away at the end of (595) the term."
We have referred to this authority not to decide the questions to which they refer, for we do not think it necessary in this case, but to show that upon a matter where lawyers and jurists may differ, or have a doubt, certainly one who is not a lawyer should not be held criminally responsible for acting bona fide on his own untutored opinion, when it accords with justice and the common sense of mankind. Our conclusion is there was error. This opinion must therefore be certified to the Superior Court of Burke County that a venire de novo may be awarded to the defendant.
Error. Reversed.
Cited: S. v. Howell, 107 N.C. 840; S. v. Morgan, 136 N.C. 630; S. v.Wells, 142 N.C. 595; Critcher v. Watson, 146 N.C. 151; S. v. LumberCo., 153 N.C. 613; Brittain v. R. R., 167 N.C. 645; S. v. Faggart,170 N.C. 740; S. v. Taylor, 172 N.C. 893; S. v. Falkner, 182 N.C. 798;Truelove v. Parker, 191 N.C. 438; Foster v. Hyman, 197 N.C. 191; Westv. West, 199 N.C. 15; S. v. Cook, 207 N.C. 262; S. v.Coal Co., 210 N.C. 754.