State v. Lawson

• Decision Date: 28 November 1898
• Citation: 123 N.C. 740,31 S.E. 667
• Parties: STATE . v. LAWSON et al.
• Court: North Carolina Supreme Court

31 S.E. 667

123 N.C. 740

STATE .

v.LAWSON et al.

Supreme Court of North Carolina.

Nov. 28, 1898.

Former Jeopardy—Forcible Entry and Detainer—Evidence.

1. The only distinction between forcible trespass and forcible entry and detainer being that the former is as to personal property and the latter as to realty, and the distinction not always being observed, acquittal of the former is bar to prosecution for the latter, it being admitted that it was "the same transaction, " and there being no evidence of personal property.

2. Evidence that prosecutor was in possession of land, which he sowed to grain, and that, while he was away, the three defendants came with plow, hoe, axe, and mattock, and commenced plowing up the grain, and that he, learning this, went and ordered them to desist, but they refused, and continued to plow it up, and he, being "afraid to say much to them, " did not stay long, and they continued to work the land, and held it that year, authorizes a conviction of forcible entry and detainer.

3. An acquittal of two persons on trial for forcible entry and detainer is not evidence, on the trial of a third, that they were not present with him.

Appeal from superior court, Stokes county; Coble, Judge.

John W. Lawson and W. J. Cheatham were convicted of forcible entry and detainer, and appeal. Reversed as to Lawson.

A. M. Stack, for appellants.

The Attorney General, for the State.

CLARK, J. Cheatham, Lawson, and Collins were indicted for forcible entry and detainer. Lawson and Collins pleaded former acquittal, as well as not guilty. The solicitor admitted that they had been tried for forcible trespass at last term for this same transaction, and acquitted. The court erred in refusing the prayer of defendants Lawson and Collins to instruct the jury to sustain the plea of former acquittal as to them, though the jury cured this as to Collins by acquitting him. It is true, the same act, with an additional circumstance, may be an offense against two statutes (State v. Stevens, 114 N. C. 873, 19 S. E. 861; State v. Robinson, 116 N. C. 1047, 21 S. E. 701), but the only distinction between forcible trespass and forcible entry and detainer is that the former is as to personal property and the latter as to realty, which distinction is not always observed. State v. Davis, 109 N. C. 809, 13 S. E. 883. There being in evidence nothing of personal property, on the admission of the solicitor that it was "the same transaction" we must take it that it was the same offense. State v. Nash, 86 N. C. 650.

The defendant Cheatham further contends it was error to refuse the prayer for instruction that there was no evidence to warrant a conviction as to him. There was evidence by the state that the prosecuting witness was in possession of the land, had sowed rye thereon, and in March the three defendants came on the land, and began plowing up the rye; that he was not present when they entered, but when he learned of it he went where the defendants were, and ordered them to desist, but they refused, and went on, and plowed up the rye, and he was "afraid to say much to them, " and did not stay long; that they worked there that day, and Cheatham held and worked the land that year. In the defendants' evidence It appeared that they three went on the land with plow, hoe, axe, and mattock, and acted as prosecutor stated. It is true, defendants denied possession of the land by prosecutor, and asserted that there was no demonstration of force. Upon this conflict of evidence the court properly submitted the case to the jury, and, we presume, under proper instructions, as the charge is not sent up, not being excepted to. The appearance of defendants in such force, with axe, mattock, hoe, and plow, with the avowed and executed purpose to plow up the rye the prosecutor had sown, and in spite of his personal protest, was reasonably calculated to put him in fear, and he says he was in fact put in fear, —was "afraid to say...