State v. McCauless
| Citation | 31 N.C. 375,9 Ired. 375 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 30 June 1849 |
| Parties | THE STATE v. WILLIAM W. MGCAULESS AND AUGUSTUS MARTIN. |
The gist of the offence of forcible trespass is a high handed invasion of the possession of another, he being present--title is not drawn in question.
If two are in the same house, the law adjudges the possession in him, who has title; but not so, as, by relation back, to make the other guilty of a forcible trespass, when the entry was without force.
Where there are two counts in an indictment, one good and the other defective, and there is a general verdict against the defendants, the judgment will be presumed to have been given upon the good count alone. But when both counts are good and the Court gives erroneous instructions to the jury as to one of the counts, it is presumed that the judgment was given upon both counts, and a venire de novo will be awarded.
Appeal from the Superior Court of Law of Surry County, at the Spring Term 1849, his Honor Judge ELLIS presiding.
The indictment contains two counts: one, for a forcible trespass into the house of the prosecutor; the other for an assault and battery.
In March 1847, the prosecutor let the house and field to one Mitchell to make a crop. Mitchell transferred his interest in the premises to Mrs. Mitchell, his mother, who took possession and lived in the house until November 1847, when she let the premises to the defendant McCauless, for the balance of the year.
The prosecutor, on the night before the alleged trespass, went to the house, while Mrs. Mitchell was still living in it, and entered, but without force, and slept there on a bed, which he carried there for the purpose. In the morning, being the 1st day of November, he went off, announcing his intention to go and get other household property and bring it to the house. While he was gone, the defendants came and entered with the permission of Mrs. Mitchell. The prosecutor returned and came into the house. In a short time his sons arrived with his household property, and were in the act of bringing it into the house, when the defendants objected, and tried to prevent it by shutting the door. This was opposed by the prosecutor, and a fight ensued between the prosecutor and the defendants.
His Honor instructed the jury, that Mitchell, and those claiming under him, were not entitled to the premises for the entire year, but only up to the usual time for making and gathering a crop, and, if that time had expired when the prosecutor entered, his entry was lawful, and the defendants, according to the evidence, were guilty of a forcible trespass,...
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State v. Cooke
...was disturbed. It is necessary to allege and establish actual possession in the prosecutor. State v. Simpson, 12 N.C. 504; State v. McCauless, 31 N.C. 375; State v. Ray, 32 N.C. 39; State v. Laney, 87 N.C. 535; State v. Davenport, 156 N.C. 597, 72 S.E.7. Whether the right to possession was ......
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State v. Davenport
... ... ability in this court, and a man who was eminent in his ... profession and at the bar as a criminal lawyer) in the case ... of State v. Laney, 87 N.C. 535, and it is sustained ... by numerous decisions of this court. State v ... McCauless, 31 N.C. 375; State v. Ross, 49 N.C ... 315, 69 Am. Dec. 751; State v. Woodward, 119 N.C ... 838, 25 S.E. 868. In State v. Covington, 70 N.C. 71, ... Judge Bynum says that, to constitute the offense of forcible ... trespass, there must be a demonstration of force, as with ... weapons ... ...
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State v. Jones
... ... The ... possession alone is considered. "Right to property or ... right of possession is not material, but only the fact of ... possession." State v. Bennett, 20 N.C. 170; ... State v. Pollok, 26 N.C. 305, 42 Am. Dec. 140; ... State v. Tolever, 27 N.C. 452; State v ... McCauless, 31 N.C. 375; State v. Laney, 87 N.C ... 535. Demonstrative force may be by a multitude or with ... weapons. State v. Ray, 32 N.C. 29; State v ... Armfield, 27 N.C. 207; State v. McAdden, 71 ... N.C. 207; State v. Barefoot, 89 N.C. 565. The force ... is sufficient if party in possession must ... ...
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State v. Toole
...C. 433, 9 S. E. Rep. 626, the two latest cases on the subject. In opposition to the numerous authorities to the same effect is State v. McCauless, 9 Ired. 375, which seems to distinguish the case where the error complained of is an erroneous charge as to one of the counts; but we fail to se......