#### STATE v. SIMON YELLOWDAY.

(Filed 23 March, 1910.)

1. Indictment — Unlawful Entry — Amendments—Deemed Made.

When upon a trial under warrant for unlawfully and willfully entering upon land, etc. (Revisal, sec. 3688), on appeal from a justice of the peace, the Superior Court ordered an amendment by the insertion of the words “without license to do so,” which amendment was not actually made, but the trial proceeded to verdict upon the assumption that it had been made, a motion in arrest of judgment on that ground will not be granted.

2. Indictment — Amendment—Superior Court — Power of Court.

The Superior Court has the power to order an amendment made to a warrant on appeal from the court of a justice of the peace. Revisal, sec. 1467.

3. Indictment — Unlawful Entry — Good Faith.

When the allegations in an affidavit and warrant for unlawfully and willfully entering upon lands, etc., under Revisal, sec. 3688, substantially comply with the statute, it is sufficient, and an averment that defendant did unlawfully and willfully enter is inconsistent with a claim of title thereto in good faith by defendant, or any right of entry.

4. Indictment — Affidavits Attached — How Construed.

When a warrant clearly • refers to an attached affidavit and calls upon defendant to answer its allegations, these allegations become a part of the warrant itself, as if written therein.

5. Indictment — Unlawful Entry — Premises — Land — Synonymous Words.

The word “premises” is synonymous with the word “land,” and an indictment for the unlawful and willful entering upon the “premises,” etc. (Revisal, 3688), is not defective for the failure of the use of the word “land.”

6. Indictment — Unlawful Entry — Possession) Constructive — Principal and Agent.

When an indictment for unlawfully and willfully entering upon the lands of another, etc. (Revisal, sec. 36S8), alleges the possession of an agent for the owner named, the owner is in constructive possession, and the allegation of possession is sufficient, the charge not being one for forcible trespass.

*7947. Instructions — Allusion to Charge — Special Instructions — Appeal and Error.

Upon a trial under a warrant for unlawfully and willfully entering upon the lands of another (Revisal, sec. 3688),.it is not reversible error for the trial judge to fail to charge the jury upon the good faith or belief of the defendant as to his ownership, when such had not been requested by special instruction, and the instruction substantially required a finding which excluded the idea of an entry in good faith.

8. Principal and Agent — Witness—Testimony—Declarations.

The testimony of a witness as to his Own agency is competent, and not objectionable as evidence of declarations of agency.

Appeal by defendant from W. R. Allen, J., at September Term, 1909, of "Wake.

Tbe facts are stated in tbe opinion of tbe Court.

Attorney-General Bichett for tbe State.

Douglass & Lyon for defendant.

'WalKeb., J.

Tbe defendant was charged, before a justice of tbe peace, with tbe crime of unlawfully and willfully entering upon land, after being forbidden to do so, contrary to tbe provisions of tbe Revisal, sec. 3688. Tbe affidavit upon wbicb tbe warrant issued did not state, in so many Words, tbat tbe defendant entered “without a license so to do,” and after tbe jury bad returned a verdict of guilty, be moved in arrest of judgment upon tbe grounds tbat tbe affidavit did not contain tbat allegation; tbat tbe affidavit, and tbe statement therein made, were not recited in tbe warrant and, therefore, did not constitute a part thereof; and lastly, because tbe affidavit failed to charge an entry upon land, or tbat tbe land was in the possession of or owned by any person. ¥e will consider these objections in. tbe order in wbicb they have been stated by us.

It appears from tbe record tbat the court ordered an amendment of tbe warrant, by tbe insertion therein of tbe words, “without a license so to do,” but tbe words were not actually inserted in tbe complaint or tbe warrant by tbe solicitor. Tbe order of tbe court, as has been decided by this Court several times, was self-executing. In the case of Holland v. Crow, 34 N. C., at p. 280, Chief Justice Ruffin, for tbe Court, says: “Tbe variance between tbe relators in the petition and tbe scire facias is cured by tbe order for amendment. It is true, tbe amendment was not actually made. But tbe scire facias was issued upon the assumption of tbe amendment, and all tbe subsequent proceedings were based upon the supposition that one was as properly a relator as tbe other, and in such cases the *795course is to consider tbe order as standing for tbe amendment itself.” He cited tbe case of Ufford v. Lucas, 9 N. C., 214, in wbicb it is held, as it was in tbe case just cited, that where, during tbe pendency of tbe.suit, leave is obtained to amend tbe writ and change tbe form of áction, if such amendment be not made on tbe record, and tbe suit be tried in its .amended form or as if tbe amendment bad been actually made, this Court 'will consider tbe case as if tbe amendment bad been properly inserted in tbe writ, warrant or complaint at tbe time tbe order was made by tbe court. This is a most just and reasonable rule and is essential to tbe due administration of tbe law. It is analogous to tbe rule in equity wbicb considers that to have been done wbicb ought to have been done, and tbe defendant has no reason to complain that tbe amendment was not actually inserted in tbe complaint at tbe time tbe order was entered, because be has been fully informed of tbe nature of tbe charge against him, and has bad every opportunity for. presenting every defense wbicb, if found to be true by tbe jury, would acquit him of tbe offense. He has been deprived of no substantial right, for tbe case shows that be proceeded, during the trial, in every respect as if tbe amendment bad been duly made. "W"e find that our decisions are fully supported by those in other States. In Palmer v. Lesne, 3 Ala., 741, it was held by tbe Court that, where leave, granted to tbe plaintiff to amend bis declaration, was special and pointed out tbe particulars in wbicb tbe amendment was to be made,- it did not require a new declaration to be filed, as in tbe case of an order to amend generally by filing a new declaration or adding a distinct count, in which case tbe law would require it to be made in point of fact, but tbe court- will consider tbe leave granted as operating in itself to complete an insufficient or defective statement of tbe cause of action or of tbe specific charge made against tbe defendant. To tbe same effect is tbe case of Fulkerson v. Missouri, 14 Mo., 49. This objection of tbe defendant is, therefore, untenable.

It is not necessary that we should decide whether it was essential that tbe omitted words should have been inserted in tbe complaint in order to make it a complete and valid charge against the defendant, as what we have said has fully answered tbe objection wbicb has been made to tbe affidavit and warrant. We will refer, though, to tbe case of S. v. Whitehurst, 70 N. C., 85, wbicb. seems to bold that such an averment in tbe affidavit upon wbicb tbe warrant issued for unlawful trespass on land is not necessary. It cannot be doubted that tbe court bad tbe power to order tbe amendment to be made. It is provided by tbe Revisal, sec. 1467, tbat, “No process or other proceeding *796begun before a justice of tbe peace, whether in a civil or a criminal action, shall be quashed or set aside for the want of form, if the essential matters are set forth therein; and the court in which any such action shall be pending shall have power to amend any warrant, process, pleading or proceeding in such action, 'either in form or substance, for the furtherance of justice, on such terms as shall be deemed just, at any time, either before or after judgment.” See S. v. Vaughan, 91 N. C., 532; S. v. Smith, 103 N. C., 410.

It is difficult to understand how the defendant was prejudiced by the omission of the words which the court ordered to be inserted in the complaint or affidavit. It is distinctly, charged that he entered upon the land unlawfully and willfully, and if this be true, it is inconsistent with the idea that he entered in good faith claiming title to the land, or the right to enter, or that he entered with a license so to do. It is well, though, for the justices and the solicitors of-the different courts to make the accusation against the defendant as nearly as possible in the language of the statute, but a substantial compliance with the statute is all that the law really requires. If, though, care be taken in the respect indicated, such an objection as is now urged cannot possibly be available to the defendant.

The second objection is that the allegations of the complaint or affidavit were not inserted in the warrant; but this is untenable, as the warrant clearly refers to the affidavit and called upon the defendant to answer its allegations. This is all that the law requires in such a case. S. v. Winslow, 95 N. C., 649; S. v. Davis, 111 N. C., 729; S. v. Sharp, 125 N. C., 634; S. v. Yoder, 132 N. C., 1113.

The third ground for the motion in arrest of judgment is that the affidavit does not charge an entry upon the land, but upon the “premises” of Mrs. Perkinson, the said premises being in charge of the affiant, who was J. O. Morgan. The word “premises,” by repeated rulings of the Court, is now understood to be synonymous with the word “land.” The same question as we now have under consideration was raised in the case of S. v. French, 120 Ind., 229, which was an indictment for the same kind of offense as is charged in this case to have been committed by the defendant. In that case the Court said: “It is contended with some force and plausibility that the charge is insufficiently made because the word ‘premises’ is employed instead of the word ‘land.’ * * * The word ‘premises’ is now commonly used to mean laird and tenements. Possibly usage has corrupted the meaning of the word, but the authors of our law and the lexicographers say that one of the meanings of the word is that which we have given it.”

*797It seems to be contended, by tbe defendant tbat it is not sufficiently charged in the affidavit that the owner of the land, or any one representing her, was in possession of the same; but this objection also fails, as it is distinctly alleged that the defendant entered upon the premises of Mrs. Perkinson, which were, at the time, in charge of I. 0. Morgan, who- was acting as her agent. ■ She was, therefore, by her agent, in actual possession of the land, and if Morgan had not been in possession for her, she would have been in the constructive possession of it, which would be sufficient if the defendant had been forbidden to enter upon the land and had no bona fide claim thereto- or license to enter, because this is not an indictment for forcible trespass, which would require the presence of the owner or some one representing him, and which would involve a breach of the peace.

The defendant excepted to the charge of the eburt, upon the ground that the jury were not instructed as to whether the defendant entered upon the land in good faith or not. He had been indicted for this same offense once before and was convicted, and the evidence in the case does not tend to show that his last entry was made under circumstances showing an honest belief, on his part, that he had the right to enter. But there is another more conclusive answer to this objection. The defendant complains that the court failed to charge as to this matter and, in such a case, the omission should have been called to the attention of the court by a prayer for instruction. He should not be permitted to remain silent until the court had completed its charge, and then, because the judge, by inadvertence, has omitted to instruct as to some particular feature of the case, assign the same as error. We have repeatedly overruled a similar objection in other cases. Simmons v. Davenport, 140 N. C., 407. In that case we said: “If a .party desires fuller or more specific instructions, he must ask for them, and not wait until the verdict is given against him, and then, for the first time, complain of the charge. If he would have the evidence recapitulated or any rulings of the court arising thereon presented in the charge, a special instruction should be^equested.” Boon v. Murphy, 108 N. C., 187; McKinnon v. Morrison, 104 N. C., 354; S. v. Debnam, 98 N. C., 712; Kendrick v. Dellinger, 117 N. C., 492; S. v. Graves, 119 N. C., 824; S. v. Ridge, 125 N. C., 657; Emry v. R. R., 109 N. C., 602. This principle has been so often announced that it may be considered as thoroughly well settled, if not elementary.

It appears, in this case, that the land had been processioned as between the parties, and the dividing line established, and further, that the defendant, as we have said, had been prose*798cuted once before for the same offense of wliicb be is now accused. In view of this and other testimony, we do not think he has any reason to complain of the verdict. The charge of the court was a full and accurate statement of the law applicable to the facts of the case,' and after a careful perusal of it we find no error therein.

The defendant’s counsel, in their brief, complain that the agency of Morgan was proved by the declaration of himself and of Dr. McCullers, but we think this is an error. They testified as witnesses in the case to the fact of theagency, and the general rule, that an agency cannot be proved by a declaration of the agent, has no application to the facts of this case.

A review of the whole case shows that it was correctly tried in the court below.

No error.