State v. Davis

• Decision Date: 24 November 1891
• Citation: State v. Davis, 109 N.C. 809, 13 S.E. 883, 14 L. R. A. 206 (N.C. 1891)
• Parties: State . v. Davis et al.
• Court: North Carolina Supreme Court

13 S.E. 883

109 N.C. 809

State .

v.Davis et al.

Supreme Court of North Carolina.

Nov. 24, 1891.

Forcible Trespass.

On an indictment for forcible entry, it appeared that the prosecutor had occupied a blacksmith-shop under a lease from defendant D. After the expiration of the lease, the prosecutor, without surrendering the premises, toon a lease thereof from D. 's co tenant. While the prosecutor was standing about 100 yards from the shop, defendants, D. and four others, though forbidden to do so by the prosecutor, approached, and broke open the shop, and took possession. Held, that defendants were guilty of forcible entry. State v. Mills, 10 S. E. Rep. 676, 104 N. C. 905, distinguished.

Appeal from superior court, Iredell county; Jesse F. Graves, Judge.

J. A. Davis and others were indicted for forcible entry. Jury found a special verdict, upon which judgment was rendered for defendants. State appeals. Reversed.

Statement by the Court. Indictment for forcible entry. It is found by the special verdict that the prosecutor was in possession and daily use of a blacksmith-shop; that he had come from his home that morning, intending to work in the shop that day, and, while standing at a mill about 100 yards from the shop, the defendant Davis, with a crow-bar, and the other four defendants came down to a point half-way between the mill and the shop; that, leaving the other defendants there, Davis approached the prosecutor, and demanded the key of the shop, which was refused, and Davis then indicated his purpose to open it by force, and prosecutor forbade it. The defendants then went to the shop, prized the door open, threw down a part of the chimney, displaced the bellows, and took possession; the prosecutor had rented the shop for two years from defendant Davis, but, the term having expired, he had, without surrendering possession, leased the premises from one Morrison, who was a co-tenant of the premises with Davis; that, while defendants were at the shop, the prosecutor's son was present at the shop. The prosecutor himself went to the miller's house, within 75 yards of the shop. He testified that he was not afraid of the defendants, but did not go to the shop because he feared it might lead to a difficulty. The court adjudged the defendants not guilty on the special verdict.

The Attorney General, for the State.

Bingham & Caldwell, for appellees.

Clark, J. The question was discussed before us whether this was a case of forcible entry or forcible trespass. In State v. Jacobs, 94 N. C. 950, attention is called to the fact that forcible trespass applies to personal property, and forcible entry to land; but the distinction has not always been adverted to, and it is not very material what the offense is called in argument, if the indictment sufficiently charges a violation of the criminal law, and it is proven by evidence. State v. Evans, 27 N. C. 603. To constitute either offense, there must be either actual violence used, or such demonstration of force as was calculated to intimidate or tend to a breach of the peace. It is not necessary that the party be actually "put in fear." State v. Pearmau, 61 N. C. 371. It is sufficient if there is such a demonstration of force as to create a reasonable apprehension that the party in possession must yield to avoid a breach of the peace. State v. Pollok, 26 N. C. 305; State v. Arm field, 27 N. C. 207. Such demonstration of force may be by a "multitude, " or by weapons. State v. Ray, 32 N. C. 39, citing State v. Flowers, 6 N.C. 225; State v. Mills, 13 N.C. 420. The statute (Code, § 1028) provides: "No one shall make entry into any lands and tenements or term for years but in case where entry is given by law, and in such case not with strong hand, nor with a multitude of people, but only in a peaceable and easy manner; and if any man do the contrary he shall be guilty of a misdemeanor. " The same, in effect, was the common-law rule; "Where the entry is lawful, it must not be made with a strong hand, or with a number of assailants; where it is not lawful, it must not be done at all." 2 Whart. Crim. Law, (9th Ed.) 1093. Following the analogy as to riots, three persons have been held enough to support the averment of a "multitude." State v. Simpson, 12 N. C. 504. If a breach of the peace did not actually take place, it was doubtless due to the defendant Davis' declaration of his purpose to enter, backed with a sufficient force to accomplish it in spite of the prohibition of the prosecutor. State v. Smith, 100 N. C. 466, 6 S. E. Rep. 84. The prosecutor need not have been on the exact spot. That he did not get closer than 75 yards was, he says, to avoid a breach of the peace. The defendants had shown themselves able by their numbers to render his closer approach of no avail. He...