State v. Whitaker
Supreme Court of North Carolina
This was an Indictment for Forcible Trespass, tried before McCorEe, J., at November Term, 1890, of Surry Superior Court. After evidence offered by the State showing the facts relied upon to sustain the charge, the defendant introduced himself and one Simmons, a constable, each of whom testified that a warrant of attachment had been issued by a Justice of the Peace at the instance of the defendant as agent for Royster & Strudwick.
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This was an Indictment for Forcible Trespass, tried before McCorEe, J., at November Term, 1890, of Surry Superior Court. After evidence offered by the State showing the facts relied upon to sustain the charge, the defendant introduced himself and one Simmons, a constable, each of whom testified that a warrant of attachment had been issued by a Justice of the Peace at the instance of the defendant as agent for Royster & Strudwick. The warrant was produced and appeared regular on its face, commanding the constable to levy upon the property of defendant, who is the husband of the prosecutrix.…
1Opinion of the Court
Shepherd, J.:
In the absence of some statutory provision to the contrary, this case is governed by State v. Armfield, 2 Hawks, 246. Jt was there decided that an officer cannot break open an outer door or window of a dwelling against the consent of the owner for the purpose of making a levy on the goods of the owner. This decision is referred to with approval in Sutton v. Allison, 2 Jones, 339.
While such authority is given an officer in case of “claim and delivery” where property is concealed, we can find nothing in The Code which warrants such conduct in eases of attachment and execution.
Affirm…
2Cited by4 opinions
- State v. PopeWashington Supreme Court · 1940
- Red House Furniture Co. v. SmithSupreme Court of North Carolina · 1984
- Red House Furniture Co. v. SmithCourt of Appeals of North Carolina · 1983
- State v. PopeWashington Supreme Court · 1940