Tbe defendant was indicted for removing a crop without tbe consent of tbe landlord, and before satisfying bis lien for rent and supplies. Tbe case came up originally upon a statement of case on appeal, settled by tbe judge. On motion of tbe defendant, a certiorari was issued to tbe judge to report to tbe court-tbe exact facts in connection with tbe settlement of tbe case on appeal, and upon return' of tbe writ tbe court ordered tbe defendant’s case on appeal to be docketed as tbe proper case, and tbe appeal now stands for bearing upon defendant’s statement.
One witness only was examined in tbe court below, R. H. Reynolds, wbo testified as follows: “I live in "Winton; I know tbe defendant, L. Harris. During tbe year 1911, and for three or four years before, defendant lived on my land as tenant and cultivated a crop — crop of cotton and other crops. Defendant owed me a balance of advances for the year 1911, something more than $14. That on 15 December, 1911, defendant bad served on me, by tbe Sheriff of Hertford County, a written notice requiring me to divide said crops according to law, and within five days after service of said notice. In pursuance of *268tbe notice, I went to tbe defendant’s bouse, wbicb was on tbe rented land, and divided tbe crops. Tbe cotton was upstairs; we brought it down and divided it according to contract. I took my half and carried it away; tbe defendant’s half was put back into tbe bouse. We bad a conversation about balance due me. We finally agreed on a compromise for tbe sum of $11, tbe defendant saying at tbe time tbat be did not bave tbe money to pay tbe $11 with, but would pay it in a few days. Tbe advances for tbe year 1911 consisted of a balance brought over from 1910 account, in tbe sum of $18 old account. With tbe exception of $14 above mentioned, defendant denied owing tbat amount to me on 1911 advances. We finally agreed on a compromise in tbe sum of $11, wbicb amount defendant said be would pay in a few days. This agreement was after tbe crop was divided. On 22 December, 1912, defendant, after tbe division of tbe crop, removed from tbe farm two bales of cotton and carried them to tbe cotton gin without paying tbe $11 compromise.”
In apt time tbe defendant asked tbe judge to give tbe jury tbe following special instructions:
“Tbe offense of removing a crop by a tenant before paying tbe rent and discharging all liens of tbe landlord on it is not complete unless tbe crop is removed without giving tbe five days notice under tbe statute,, and if tbe jury shall find from tbe evidence tbat tbe five days notice was given, removing the crop is not an offense, and tbe defendant would not be guilty.” The court refused to so instruct tbe jury, and the defendant excepted.
“Tbe burden is on tbe State to satisfy tbe minds of tbe jury beyond a reasonable doubt tbat tbe defendant did not give tbe landlord tbe five days notice required by law.” Tbe court refused to so instruct tbe jury, and tbe defendant excepted.
“Tbat if tbe jury believe all tbe evidence in tbe case, tbe defendant is not guilty.” Tbe court refused to so instruct tbe jury, and tbe defendant excepted.
In S. v. Crowder, 97 N. C., 432, tbe Court bolds tbat tbe offense of removing a crop by a tenant before paying tbe rent *269and discharging all liens of tbe landlord is not complete unless the crop is removed without giving the five days notice; for if the notice is given, removing the crop is not an offense. The Court also holds that the burden is on the State to prove that the defendant did not give the five days notice required. Upon this authority we are led to the conclusion that the court erred in refusing to give the instruction asked, and the defendant is entitled to a new trial.
After quoting the statute, the Court says in the Crowder case: “The offense thus prohibited is not complete unless the lessee or cropper, or the assignee of either, or other person, removed the crop or a part of it, without giving the lessor or his assigns five days notice of such intended removal, and this essential fact must constitute part of the charge in the indictment. The statute plainly so provides. It is not simply such removal without the consent of the lessor or his assigns and before satisfying all liens on the crop held by them, that constitutes the offense; this is not the offense prohibited, but it is this, done without giving five days notice to the lessor or his assigns, or his agent, that constitutes it. The purpose is to make it indictable to thus remove the crop or any part of it, without notice to the lessor or his assignee, and thus deprive him of just opportunity to enforce his lien, and to that end take such steps as need be taken to prevent such removal. If the notice is given, and the lessor or his assignee fails to enforce his lien and to take steps to prevent the removal, then it is not indictable to remove the crop. In that case the inference would be that the lessor or his assignee assented to the removal, or that he had no lien on the crop.”
If the notice served on the landlord is the one required by law, the statute has been complied with, and if not, there is no evidence that the statutory notice was not given.
New trial.