Peelle v. The State, 20,155

• Docket Nº: 20,155
• Citation: 68 N.E. 682, 161 Ind. 378
• Case Date: November 04, 1903
• Court: Supreme Court of Indiana

68 N.E. 682

161 Ind. 378

Peelle v. The State

No. 20,155

Supreme Court of Indiana

November 4, 1903

From Starke Circuit Court; J. C. Nye, Judge.

Henry H. Peelle was convicted of forcible entry, and appeals.

Affirmed.

H. R Robbins and W. C. Pentecost, for appellant.

C. W Miller, Attorney-General, C. C. Hadley, W. C. Geake, L. G Rothschild and E. D. Salsbury, for State.

OPINION

Hadley, J.

The transcript was filed in this appeal June 27, 1903, subsequent to the taking effect of the act of 1903 (Acts 1903, p. 280) amendatory of § 7 of the act of 1901 (Acts 1901, p. 565), and, the appeal involving a constitutional question, the whole case is before us for decision.

An affidavit charging appellant with forcible entry, under § 2055 Burns 1901, was filed before M. T. Hepner, clerk of the town of Knox. The venue was changed to a justice of the peace before whom appellant was convicted, and appealed to the circuit court, where he was again convicted, and prosecutes a further appeal to this court.

The questions properly reserved and presented by the assignment are: (1) The constitutionality of the act approved February 28, 1901 (Acts 1901, p. 57), concerning town officers; (2) the sufficiency of the affidavit; (3) the sufficiency of a special plea; (4) the correctness of certain instructions given and refused; (5) the validity of the judgment.

1. The first question has recently been decided by this court adversely to the appellant's contention. Baltimore, etc., R. Co. v. Town of Whiting, ante, 228.

2. The affidavit upon which the prosecution was had is in these words: "That on November 15, 1902, at the county of Starke and State of Indiana, one Henry Peelle did then and there, violently, with menace, force, and arms, to wit, sledge, ax, and shotgun, and without authority of law, unlawfully take possession of a certain dwelling-house and lands in said county situate, which said dwelling-house and lands were then and there and theretofore in the lawful possession of one Albert Clark; contrary," etc. The objection made to the affidavit is its uncertainty in the description of the premises entered. This being a prosecution for a forcible entry, and restitution being neither demanded nor contemplated, the description of the premises is sufficient under the rule declared in Strong v. State, 105 Ind. 1, 4 N.E. 293.

3. The motion to quash having been overruled appellant filed what he terms a special plea, setting forth with much detail and elaboration a history of the contract between the prosecuting witness and appellant, the nonperformance of the prosecuting witness, the liberality of appellant, and the motive that prompted the prosecution. The sustaining of the demurrer to this plea was at least harmless, since all matters pertinent to the case were admissible in evidence under the plea of not guilty.

4. Appellant complains of the giving of the second, fourth, and sixth instructions to the jury. The single objection urged to these instructions is common to all three, and is to the effect that it was incumbent upon the State to prove that the tenant dispossessed by the defendant had not only the peaceable, but the rightful possession of the premises. The court, in charging the jury, limited the essential proof touching the prosecuting witness' occupancy to "peaceable possession," omitting the word "rightful," and this was correct. If the defendant had no right to enter, but did so by forcibly expelling one who had no lawful right, but was in the peaceable possession, the law denounces the act the same as if the possession had been rightful as well as peaceable. The action of forcible entry or detainer can not be employed, in either its civil or criminal form, to try the right or title to property. Swails v. State, 4 Ind. 516; Higgins v. State, 7 Ind. 549; Archey v. Knight, 61 Ind. 311; Vess v. State, 93 Ind. 211. "In a prosecution of this kind," said the court at page 215 in the last case cited, "the defendant can neither go into evidence to disprove the title of the complainant, nor to establish his own, as the question is not one of civil right, but of public concern, affecting the public peace. The offense, considered as an injury merely, is against the possession of the prosecuting witness, and not against his title."

The instructions are in the record by bill of exceptions. At a proper time the defendant requested the court to instruct the jury in writing. It is shown that by the last instruction being number eleven, the court directed the jury that if they found from all the evidence that the defendant was guilty, as charged, beyond a reasonable doubt, they should find and return, in substance, this form of verdict: "We, the jury, find the defendant Henry Peelle guilty of the charge in the affidavit, and fix his punishment at a fine of $ .... ...., foreman." It is noted in the bill that this instruction is indorsed on the margin as follows: "Excepted to April 1, 1903. Robbins & Pentecost, Attys. for defendant." The bill then proceeds: "That in giving instruction number eleven the court, after reading the form of verdict as far as the words 'at a fine of' stated orally to the jury these words, 'any sum not exceeding $ 1,000.' That to the giving of instructions numbered two, four, five, six, seven, eight, and eleven, the defendant at the time excepted, and noted...