State v. Eason

• Decision Date: 31 January 1874
• Citation: 70 N.C. 88
• Court: North Carolina Supreme Court
• Parties: STATE v. JESSE EASON, and others.

70 N.C. 88

STATE

v.JESSE EASON, and others.

Supreme Court of North Carolina.

January Term, 1874.

An indictment to be good, must set forth with plainness and certainty, all the essential facts constituting the offence; the charge must be explicit enough to support itself, for if all the facts alleged in the indictment may be true and yet constitute no offence, the indictment is insufficient.

INDICTMENT, for Forcible Entry and Detainer, tried at the Fall Term, 1873, of GATES Superior Court, before his Honor, Judge Albertson.

The defendant, with five others, at Fall Term, 1871, were indicted for forcibly entering into a certain messuage and tract of land, containing two hundred and seventy-five acres, “and being then and there in the peaceable possession of Elvy Russell,” &c., and “then and there, with force and arms and with a strong hand, unlawfully, violently, forcibly and injuriously did expel, remove and put out the said Elvy Russell from the possession of the said messuage and tract of land, and the said Elvy Russell, so as aforesaid, removed, expelled and put out from the possession of the same, then and there with force and arms and with a strong hand, unlawfully, forcibly and injuriously have kept out from the day,” &c.

Another count charges that one Simeon Swain was in the peaceable possession of the said messuage and land, and was forcibly expelled as above set forth. Another count varies the statement, only by charging that Elvy Russell was seized in fee of said land, and was forcibly expelled, &c.; and the last that Simeon Swain was seized, &c.

On the trial, at Fall Term, 1873, the defendants pleaded not guilty, and a jury was empanelled, when his Honor permitted a juror to be withdrawn, and the counsel for the defendants to move that the indictment be quashed, for the reason, that it is not therein alleged, the forcible entry was made in the presence of the owner or occupant of the premises. His Honor allowed the motion, and ordered the indictment to be quashed. Solicitor Bagley appealed.

Bagley, with whom was the Attorney General, for the State , sudmitted that??

The motion to quash the bill should not have been allowed, because:

1. The bill is according to the precedents. Wharton's Precs., Archb. Crim. Pl. Tit. Forc. Entry.

2. An entry may be forcible by violence in the manner of entry, as by breaking the doors, though no person be therein, or perhaps, by any act of outrage after entry as by carrying off the party's goods. 1 Russ. marg. p. 287. Therefore, personal presence of the prosec??ntor or occupant is not necessary to constitute the offence and need not be alleged.

3. The allegation that the prosecutor was then and there in the peaceable possession and was forcibly and violently expelled, is a sufficient allegation of presence.

4. The law distinguishes between forcible entry and detainer and forcible trespass on this point. 2 Bishop Crim. Law, title, Forc. Tresp., sec. 491; same, Forc. Entry, sec. 484.

5. The bill is good for forcible detainer. Wharton's Precedents.

Smith & Strong, for defendants , argued:

The indictment charges a violent entry upon a tract of land in possession of the prosecutor and his dispossession thereof. It does not charge that he or any one was present at the time of the entry.

The taking must be charged to be from the actual possession, or it must be alleged the prosecutor was present. State v. McDonell, 1 Hawks, 449; State v. Mills, 2 Dev. 420; State v. Simpson, 1 Dev. 504.

It is sufficient at common law to charge a forcible entry into a dwelling house, but any violence inflicted on it short of an entry and detainer is not indictable unless the prosecutor or some of his family were present, and it be so charged. State v. Fort, 4 D. & B., 792; State v. Whitfield, 8 Ire., 315; State v. Pollok, 4 Ire., 305; State v. Tolever, 5 Ire.??. 452.

The gist of the offence of forcible trespass is a high-handed invasion of the actual possession of another-- he being present--title is not drawn in question. State v. McCanless, 9 Ire, 376; to same effect, State v. Walker, 10 Ire., 234; State v. Ross, 4 Jo., 315.

BYNUM, J.

This case is here on an appeal by the State, from the order of the Court below, quashing the indictment. The record shows that the case stood upon issues joined between the State and the defendants, when the motion to quash was made and allowed.

The books do not agree that this motion can be entertained, after plea pleaded, but the better opinion seems to be that it may be allowed, at the discretion of the Court, at any time before the verdict, but not after conviction, for then the proper motion is in arrest of judgment. Foster Cr. L., 261; 1 Bish. Crim. Prac., sec. 447.

The single question, then, before the Court is, as to the sufficiency of the indictment, and as that contains four counts, and a general verdict of guilty would authorize the Court to pronounce judgment, if any one of the counts is good, it follows that his Honor erred, unless all the counts are bad, for if some are good and some bad, the motion and order should have been to quash the bad counts, and it was error to quash any one that is good. 1 Bishop Crim. Prac. sec. 449.

An indictment, to be good, must set forth with plainness and...