State v. . Sherrill
Supreme Court of North Carolina
Appeal from a judgment refusing to discharge the defendants, rendered at Pall Term, 1879, of Caldwell Superior Court, by Schenck, J. The defendants were tried and convicted at spring term, 1879, of said court upon an indictment for trespass upon the premises of one Harris, and on appeal to this court it was held that there was a variance between the allegation and proof, in that, the case showed that the premises on which the alleged trespass was committed were in possession…
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Appeal from a judgment refusing to discharge the defendants, rendered at Pall Term, 1879, of Caldwell Superior Court, by Schenck, J. The defendants were tried and convicted at spring term, 1879, of said court upon an indictment for trespass upon the premises of one Harris, and on appeal to this court it was held that there was a variance between the allegation and proof, in that, the case showed that the premises on which the alleged trespass was committed were in possession of one Lewis. See same case 81 N. C., 550. Upon the certificate of the opinion being transmitted to the court below,…
1Opinion of the CourtDillard, J.
As there was no final judgment in the court below, the appeal must be dismissed. State v. Keeter, 80 N. C., 472; State v. Bailey, 65 N. C., 426.
But as there seems to have been some misapprehension as to the effect of the decision in this case on the former appeal as reported in 81 N. C., 550, we will say, that the legal effect-of the appeal was to vacate the judgment below, and the error adjudged in this court by reason of the variance between the allegation and the proof, operated to put out of the way or vacate the verdict. And so, upon the certified opinion of this court, the defendant…
2Cases cited3 opinions
- State v. . BaileySupreme Court of North Carolina · 1871
- State v. . KeeterSupreme Court of North Carolina · 1879
- State v. . SherrillSupreme Court of North Carolina · 1879
3Cited by6 opinions
- State v. NugentSupreme Court of North Carolina · 1955
- State v. DrakefordSupreme Court of North Carolina · 1913
- State v. CookeSupreme Court of North Carolina · 1957
- State v. WallaceSupreme Court of North Carolina · 1959
- Cannon v. . MorrisSupreme Court of North Carolina · 1879
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