STATE v. ELLEN MARIE DAVIS, 261 N.C. 463

Denny, C.J. The appellant assigns as error the refusal of the court below to sustain her motion for judgment as of nonsuit. The defendant contends that G.S. 14-134, which in pertinent part reads: “If any person after being forbidden to do so, shall go or enter upon the lands of another, without a license therefor, he shall be guilty of a misdemeanor,” is unconstitutional by reason of conflict with

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Section 17 of the Constitution of North Carolina and the Privileges or Immunities, Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States; that said prosecution here rests upon an unlawful exercise of legislative power by a private citizen, to wit, the prosecuting witness. In other words, the defendant contends she has the inherent right to exercise the fundamental freedom to enter upon the premises of any private business which is open to the public generally, whether she is forbidden to do so or not, and any abridgment of that right is unconstitutional.

This Court, in S. v. Clyburn, 247 N.C. 455, 101 S.E. 2d 295, speaking through Rodman, J., said: “Our statutes, G.S. 14-126 and 134, impose criminal penalties for interfering with the possession or right of possession of real estate privately held. These statutes place no limitation on the right of the person in possession to object to a disturbance of his actual or constructive possession. The possessor may accept or reject whomsoever he pleases and for whatsoever whim suits his fancy. When that possession is wrongfully disturbed it is a misdemeanor.

The extent of punishment is dependent upon the character of the possession, actual or constructive, and the manner in which the trespass is committed. Race confers no prerogative on the intruder; nor does it impair his defense. “The Fourteenth Amendment to the Constitution of the United States created no new privileges. It merely prohibited the abridgment of existing privileges by state action and secured to all citizens the equal protection of the laws. * * * “* * * (I)t is apparent the Legislature intended to prevent the unwanted invasion of the property rights of another. S. v.

Cooke, supra (246 N.C. 518, 98 S.E. 2d 885); S. v. Baker, 231 N.C. 136, 56 S.E. 2d 424. It is not the act of entering or going on the property which is condemned; it is the intent or manner in which the entry is made that makes the conduct criminal. A peaceful entry negatives liability under G.S. 14-126. An entry under a bona fide claim of right avoids criminal responsibility under G.S. 14-134 even though civil liability may remain. S. v. Faggart, 170 N.C. 737, 87 S.E. 197; S. v. Wells, 142 N.C. 590; S. v. Fisher, 109 N.C. 817; S. v.

Crosset, 81 N.C. 579. “What is the meaning of the word ‘enter’ as used in the "statute defining criminal trespass? The word is used in G.S. 14-126 as well as G.S. 14-134. One statute relates to an entry with force; the other to a peaceful entry. We have repeatedly held, in applying G.S. 14-126, that one who remained after being directed to leave is guilty of a wrongful entry even though the original entrance was peaceful and authorized. S. v. Goodson, supra (235 N.C. 177, 69 S.E. 2d 242); S. v. Fleming, 194 N.C. 42, 138 S.E. 342; S. v. Robbins, 123 N.C. 730; 8. v. Webster, 121 N.C. 586; S. v.

Gray, 109 N.C. 790; S. v. Talbot, 97 N.C. 494. The word ‘entry’ as used in each of these statutes is synonymous with the word ‘trespass.’ It means an occupancy or possession contrary to the wishes and in derogation of the rights of the person having actual or constructive possession. Any other

interpretation of the word would improperly restrict clear legislative intent. * * *” In light of the foregoing decision and the authorities cited therein, we hold that where a person without permission or invitation enters upon the premises of another, and after entry thereon his presence is discovered and he is unconditionally ordered to leave the premises by one in the legal possession thereof, if he refuses to leave and remains on the premises, he is a trespasser from the beginning.

Likewise, “it is the law of this jurisdiction that although an entry on lands may be effected peaceably and even with permission of the owner, yet if, after going upon the premises of another, the defendant uses violent and abusive language and commits such acts as are reasonably calculated to intimidate or lead to a breach of the peace, he would be liable for trespass civiliter as well as crimiliter (S. v. Stinnett, 203 N.C. 829, 167 S.E. 63), for 'It may be, he was not at first a trespasser, but he became such as soon as he put himself in forceable opposition to the prosecutor’.” Freeman v.

Acceptance Corp., 205 N.C. 257, 171 S.E. 63. The defendant further contends that her arrest and prosecution were violative of her rights under G.S. 72-1, which reads as follows: “Every innkeeper shall at all times provide suitable food, rooms, beds and bedding for strangers and travelers whom he may accept as guests in his inn or hotel.” (Emphasis ours.) There is evidence in the record to the effect that the prosecuting witness owned the Enfield Motel; however, there is no evidence in the record tending to show that the prosecuting witness operated or managed the motel.

Furthermore, there is no evidence tending to show that the defendant ever applied for lodging at the motel. Therefore, we hold that G.S. 72-1 has no application to the facts in this case. We further hold that the provisions of G.S. 14-134 do not conflict with

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Section 17 of the Constitution of North Carolina or with the Privileges or Immunities, Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States. United States v. Harris, 106 U.S. 629, 27 L. Ed. 290. The evidence adduced by the State in the trial below was sufficient to carry the case to the jury and to support the verdict rendered. The motion for judgment as of nonsuit was properly overruled. We have examined the remaining assignments of error and they present no prejudicial error. In the trial below, we find No error.