
    STATE v. ISHAM DURHAM.
    
      Indictment for IVespass on Land — Burden of Proof — •Claim of Right — Reasonable Ground of Belief — Destroyed Records— Evidence.
    
    1. If upon tlie trial of an indictment for entry on land after being forbidden, such entry is shown or admitted, the burden is upon the defendant to show that he entered under a bona fide claim of right.
    2. In such case, in addition to defendant’s testimony that he believed he had a right to enter he must show that he had reasonable ground for such belief, and in the absence of such additional evidence it is the duty of the trial Judge to instruct the jury that, if they believe the evidence, the defendant is guilty.
    3. In the trial of an indictment for entry upon land after being forbidden, the defendant testified that he believed he had a right to follow an old road across the land in question,, but admitted that the road had been blocked for 10 or 11 years by wires put up for the purpose; I-Ield, that the defendant’s evidence of a bona fide belief, being un-sustained by any evidence of a reasonable ground for such belief, was immaterial, and the trial Judge properly instructed the jury to find the defendant guilty if they believed the evidence.
    4. Where the book of records ofia board of township trustees is shown to have been destroyed by fire, the making of an order discontinuing a certain road can be proved by one of the trustees.
    
      INDICTMENT under Section 1120 of The Code for entering upon land, after being forbidden, tried before Robinson, J., and a jury at May Term, 1897, of Vance Superior Court.
    On the trial J. R. Young testified that he was the owner and in possession of the land, near Henderson, upon which the trespass was made; that he directed his tenant to notify defendant not to trespass on the-premises; that there was a fence composed of two or three strands of wire across that part of the land where the trespass was committed — put up in 1887 or .1888; that the fence was taken down and pushed to one side and brush thrown out and a road made across the hind and horses and vehicles drove across. On cross examination he stated that he had heard that formerly and before he owned the land a road ran across the land, but that in 1868 or 1869 it had been discontinued by the board of township trustees and that there has been no road across the land since he bought it in 1885.
    Thomas Allen, for the state, testified: “I live on the farm in question. Lived there last year. In. February or March of this year X notified Durham not to trespass on the land. The wire of Young’s fence was down, and I nailed it up, and cut bushes and put in the road. Defendant pulled them out, and told me not to do it, as he was going to travel it until Lawyer Hicks told him to stop. I tended the land last year, and intended to do it this year. He asked my permission to go across it last year, and I granted it. Knew nothing about it until .last year.”
    W. A. Belvin, fox the state, testified: “I have lived near Henderson since 1855. Knew this road ever since. It was a public road. I was a member of the board of township trustees and a justice of the peace. About 1870 or ’71 the township trustees discontinued the road, took the hands off, and assigned them to another road. (Defendant objected to this testimony for the reason that the Statute directed, and still does, tlie mode by which a public road might be discontinued, and it is not competent to show that it was discontinued in any other way, except by nonuser for thirty-years. Objection overruled. Defendant excepted.)” The witness stated that it had not been used or worked for 27 years. On cross-examination lie stated: “I have not been been a justice or road supervisor all the time. If this road had had an overseer, or been worked, I would have known it. We did not stop it up; we simply took the hands off. I cannot say it has not been traveled by those who wanted to, in all that time; but it was discontinued as a public road by the township trustees. I do not remember that every land owner was notified, or that notice was posted; but I presume we did what was necessary. The book of the trustees containing this was burned in the Henderson fire in the spring of 1870. 1 never knew or heard that the county commissioner's had anything to do with discontinuing it. The part of this road that crossed Young’s land has been in cultivation. J saw it in cultivation last year.”
    There was other evidence as to the disuse of the old road.
    Defendant, a witness in his own behalf, testified: “I am 53 years old. Have known this place 40 years. Have lived within two miles of it for 40, and at it 27, years. I remember when this road across Young’s land was worked by an overseer and hands. This wire was put up 3 0 or 11 years ago. It came to the road and across it to a cedar, and then down the road. People at first went along beside the wire, and then turned across Buchanan’s land; but he stopped up that way this year, which is the first time people passing in that direction have been stopped. Then I took down the wire at the cedar, and traveled along the old road.” The Court here intimated that it would instruct the jury, upon the evidence, that the defendant -was guilty. Defendant offered to show by this witness his bona fide belief in. his right to travel the old road across prosecutor’s land; and also by himself and many other witnesses that the public continued to go over this road till 1888; when a wire fence was put across the road by the prosecutor, and that thereafter the public went across the land of the prosecutor and Buchanan, an adjoining owner, in the same direction, until early in 1897, when the said paths were obstructed. The Court, upon objection by the State, held this evidence incompetent and immaterial. Defendant excepted.
    The Court then charged the jury that upon all the evidence, if believed, they should find defendant guilty. Defendant excepted, upon the grounds : (1) That, it appearing from all the evidence that the locus in question was once a public road, it devolved upon the State to prove beyond a reasonable doubt that the right and easement of the public to go over it has been lost either by the method prescribed by law for discontinuing public roads, before 187(>, with the concurrence of the township trustees, or else by a nonuser of the easement, by the public for 80 years, neither of which was proved by the State; and the action of the township trustees, as testified to, in taking off the hands and ceasing to work the road, or even the order of the trustees discontinuing the road, if proved, would not, without the concurrence of the county commissioners, make, as provided by law, a discontinuance of the road. (2) The Court should have admitted the evidence offered by defendant of the bona files of his claim of right to enter and go over the lands on that part thereof regarded by defendant as a public highway, and should have charged the jury as requested, that, if defendant entered the land under a bona Jicle claim of right, and went over it, he would not be guilty, when the same had ceased to be a public road. The jury returned a verdict of guilty and from the judgment thereon defendant appealed.
    
      
      Mr. Zeb V. Walser, Attorney General, and Mr. W. B. Shaw for the State.
    
      Mr. T. T. Hicks, for defendant (appellant.)
   Clark, J.:

Upon an indictment for entry upon land after being forbidden {Code, Section 1120) when the entry, after being forbidden b_y the partjr in possession, is shown or admitted the burden devolves upon the defendant to show that ho entered under a bona fide claim of right. It is not sufficient merely to testify that he believed he had a right to enter, for, if so, the Statute would be a nullity and incapable of enforcement, but he must show that he had reasonable ground for such belief. State v. Glenn, 118 N. C., 1194; State v. Bryson, 81 N. C., 595; State v. Crawley, 103 N. C., 353. If there is no evidence in that status of the case to show reasonable ground for such belief the Judge should instruct the jury that, if they believe the evidence, the defendant is guilty. State v. Fisher, 109 N. C., 817; State v. Glenn, supra; State v. Calloway, 119 N. C., 864.

The prohibition and the entry thereafter were in evidence and not denied. It Mias also in evidence that the former public road Mras discontinued in 1870 by the board of toM'n-sliip trustees, vdio at that time viere empowered to discontinue public highways. Acts 1868-’69, Chapter 185, Section 14. It being shown that the book of record of the board of township trustees had been destroyed by fire, the making of such order was properly shown by one of the said trustees. It Mras further in evidence by the defendant’s own testimony that the road had been blocked for ten or eleven years by wires put up for that purpose.

The Judge therefore properly held that the defendant’s evidence of a bona fide belief that he had a right to enter, being unsustained by any evidence of a reasonable ground for such belief, was immaterial, and that if the jury believed the evidence tliey should find the defendant guilty.

No error.

MONTGOMERY, J., did not sit on the hearing of this appeal.  