State v. Bennett

• Decision Date: 31 December 1838
• Citation: 20 N.C. 170
• Court: North Carolina Supreme Court
• Parties: THE STATE v. JOHN H. BENNETT.

20 N.C. 170

THE STATE

v.JOHN H. BENNETT.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM. 1838

Forcible Trespass—Writ of Restitution—Conditional Sentence.

1. In an indictment for a riot and forcible trespass in entering a man's dwelling house, he being in the actual possession thereof, and taking from his possession slaves and other personal property, it is not necessary to show that the prosecutor had the right to the property, or the right to the possession, but whether he had in fact the possession thereof at the time when that possession was charged to have been invaded with such lawless violence, and any evidence tending to establish that possession is admissible.

2. An indictment for a forcible trespass in entering a man's dwelling house, which does not charge an expulsion from the house or a withholding of the possession thereof up to the time of the finding of the indictment, nor set forth the interest of the prosecutor, will not, in case of conviction, warrant a writ of restitution.

3. Upon a conviction for a criminal offense, it is irregular to annex to the sentence any condition for its subsequent remission. A judgment, though pronounced by the judge, is not his sentence, but the sentence of the law. It is the certain and final conclusion of the law following upon ascertained premises. It must therefore be unconditional.

4. The violence necessary to support an indictment for a forcible trespass in entering a man's dwelling house and taking from his possession personal chattels, will be sufficiently proved by showing that the defendants appeared in such numbers and under such circumstances as to deter the prosecutor from resistance, though there was no actual breach of the peace.

5. In such an indictment the presence of the prosecutor must be proved, but it need not be shown that he had hold of the chattels; it is sufficient if he were on the spot.

6. The practice which has prevailed to some extent in this State of inflicting fines with a provision that they should be diminished or remitted altogether upon matter thereafter to be done or shown to the court by the person convicted, is illegal.

7. In cases where the law gives to the judges a discretion over the quantum of punishment, they may with propriety suspend the sentence for the avowed purpose of affording to the convicted an opportunity to make restitution to the person peculiarly aggrieved by his offense, or to redress its mischievous public consequences, and when judgment is to be pronounced the use which has been made of such opportunity is very proper to be considered by the court in the exercise of that discretion.

THE defendant was indicted, together with three other persons,at Guilford, on the last circuit, before his Honor, Judge Pearson, "for that they with force and arms in the county of Guilford, unlawfully, riotously, and routously, did assemble and gather together to disturb the peace of the State; and being then and there assembled and gathered together, the dwelling house of one Benjamin Curry, a free man of color, there situated, and then and there in the actual possession of the said Benjamin Curry, unlawfully, riotously and routously did break and enter, and having so as aforesaid broken and entered the said dwelling house, then and there unlawfully, riotously and routously did take and carry away out of the actual possession of the said Benjamin Curry five slaves, to wit, Phillis, Harriet, Jim, Henderson, Emily, and Wade Hampton, two beds, bedsteads and furniture, five chairs and three plates, the said Benjamin Curry being then and there actually present forbidding the said John H. Bennett, Joseph Micheaux, William Hix, and William Rail so to do; and other wrongs to the said Benjamin Curry then and there unlawfully, riotously, and routously did; to the great damage of him, the said Benjamin Curry, to the evil example of all others in the like case offending, and against the peace and dignity of the State." There was a second count in the indictment charging the breaking the house and the taking and carrying away the slaves and other property, to have been done violently, forcibly, injuriously, unlawfully, and with a strong hand," instead of "unlawfully, riotously and routously," as in the first count, but similar in other respects to that count.

On behalf of the prosecution it was proved that Benjamin Curry, a free man of color, was living in the house mentioned in the indictment, and cultivating the land on which it was situated, and on the day of the alleged trespass was ploughing in oats near the house; that he bought the land about twelve years before, about which time he also bought the negro woman Phillis, who was his wife and the mother of the other slaves; that he lived on the land ever since he bought it, during all which time, with the exception of a few weeks, he had possession of the

negroes and other personal property, up to the time of the trespass; that on the day of the alleged trespass the defendant Bennett, incompany with the other defendants, came to the house in the possession of Curry, and in despite of his repeated remonstrances, violently took and carried away the negroes and other personal property, and forcibly ejected Curry from the house, and put Hix, one of the defendants, in possession of it, who resided there until a few weeks before the trial, when he left the premises unoccupied.

The defense was put upon the ground that Curry was not in possession, and the defendants' counsel stated that they expected to prove that Bennett was in possession, for that Curry had sold the land, negroes, and other property to him, and executed deeds therefor, and that afterwards was surrendered to Bennett, and that he, to continue his own possession, placed these negroes there to live, and gave permission to Curry to stay there as a guest or lodger, or as his agent or overseer, he, Curry, taking care of the property in consideration of this permission to live with his wife and children. The defendants' counsel then read in evidence three deeds from Curry to Bennett, for the land, negroes, and other property in question. This evidence was objected to by the Solicitor General of the State. The defendants' counsel then introduced two witnesses, Hunt and Newsom, who gave evidence tending to establish the facts alleged in the defense.

The Solicitor General then stated that he had much evidence to offer, but being aware that it would be objected to, he would ask permission to state it to the court, that he might obtain the opinion of the court whether the whole or any part of it was admissible. He was requested to state it, which he did as follows: That the defendants' witness Hunt, and one Lindsay, had some time before the executions of the deeds by Curry to Bennett, by means of usury and extortion, obtained from Curry evidences of debt to a considerable amount, secured by a deed of trust, fraudulently obtained, upon Curry's land and negroes; that Lindsay and Hunt caused the trustee to advertise the negroes for sale, and that Curry, under great apprehension that his wife and children would be sold and carried out of the State, applied to the defendant Bennett for assistance; that Bennett promised him that if he would put the negroes in pawn to him, Bennett, he would stand his security and enable him to enjoin the sale and bring Hunt and Lindsay to a fair settlement; that while Curry was resting easy under this assurance, Bennett came to a secret understanding with Lindsay; that he, Bennett, would buy the negroes from Curry with Lindsay's claims, and Lindsay agreed to wait with him until he could send the negroes off and sell them; that a few days before the sale under the trust was to take place Lindsay refused to stand to his agreement with Bennett, upon which Bennett

informed Curry that he could not assist him as he had promised; whereupon Curry took the negroes and carried them to Greensborough, and applied to counsel to have a bill of injunction prepared...