Winn v. State

• Decision Date: 23 January 1892
• Citation: Winn v. State, 18 S.W. 375, 55 Ark. 360 (Ark. 1892)
• Parties: WINN v. STATE
• Court: Arkansas Supreme Court

18 S.W. 375

55 Ark. 360

WINN v. STATE

Supreme Court of Arkansas

January 23, 1892

APPEAL from Pope Circuit Court, J. G. WALLACE, Judge.

Winn was convicted under an indictment which charged as follows "For that whereas one D. F. Moore then and there having a valid and existing written lease, and being entitled to the possession, of the following real estate (describing it); the said C. M. Winn, being armed with a deadly weapon, unlawfully and wilfully, by putting in fear of immediate danger to the person of him the said D. F. Moore, did keep possession of the above real estate."

The facts are sufficiently stated in the opinion.

Cause remanded.

Wilson & Granger for appellant.

1. The demurrer to the indictment should have been sustained. This is a statutory offense, and it is essential that the violence or putting in fear should be directed to one entitled to the possession. Mansf. Dig., secs. 1808, 2015; 1 Bish., Cr Proc., sec. 554-5; 38 Ark. 519. The indictment fails to follow the statute. 1 Bish., Cr. Pr., secs 488-581-2.

2. The instrument in evidence, while treated as a lease, more nearly resembled a conveyance for years, for a gross consideration to be paid, upon a condition subsequent of forfeiture for non-payment. The appellant, in case of failure, had the right to claim a forfeiture and re-enter peaceably, which he did. He was then legally in possession, and had a right to defend it. Tiedeman on Real. Prop., 271-2, 276-7; Taylor, Land. and Ten. (8 ed.), secs. 288, 492; 1 Washb. R. P. (5th ed.), p 605-9; 2 id., pp. 14, 18, 19-20.

The court erred in excluding the evidence showing that appellant was rightfully and peaceably in possession.

W. E Atkinson, Attorney General, and Charles T. Coleman for appellee.

1. It is objected that the allegations as to the lease and possession are stated under a quod cum, whereas they should have been charged directly. The gist of the offense is forcible detainer, the tendency of which is to disturb the public peace, and the recital of the lease and that the prosecutors were entitled to the possession was mere matter of inducement, and not a necessary ingredient, and could be laid under a quod cum. 1 Bish., Cr. Pro., sec. 555.

2. The stipulations in the lease were covenants and not conditions, and appellant was not entitled to re-enter for breach, but must sue to recover damages. Bac. Ab. "Conditions;" 2 Black. Com., 151 n; 4 Kent. Com., 128; 3 Co., 65 a; 21 Wall. 63; 8 N.H. 177; 2 Coke, Lit., sec. 328 et seq.; 1 Dev. & Bat., 324; 10 N.J.Eq. 508; 3 B. & Ad., 299; 1 Wash., R. P., 511; 41 Ark. 532.

OPINION

HUGHES. J.

This is an appeal from a judgment of the Pope circuit court, convicting appellant of a violation of section 1808 of Mansfield's Digest, which is as follows:

"Every person who shall take or keep possession of any real estate by actual force or violence, without the authority of law, or who, being armed with a deadly or dangerous weapon, shall by violence to any person entitled to the possession, or by putting in fear of immediate danger to his person, obtain or keep possession of any such real estate or property without legal authority, shall, on conviction, be adjudged guilty of a misdemeanor and be fined not less than fifty dollars and be imprisoned not exceeding one year."

D. F. Moore and R. L. Davis held possession of the real estate described in the indictment by virtue of a lease executed by the appellant, C. M. Winn. The lease was read in evidence, and was as follows:

"This indenture, made this 27th day of December, A. D., 1887, by and between C. M. Winn, and D. F. Moore and R. L. Davis, Witnesseth: That the said C. M. Winn hereby leases unto said D. F. Moore and R. L. Davis, the following described piece of land, to wit:

* * * *

"To hold for the term of six years from date; said lease expiring on the 27th day of December, A. D., 1893. And the said D. F. Moore and R. L. Davis, for themselves, their executors and administrators, do hereby covenant to and with the said C, M. Winn, his heirs and assigns, that they will dig a ditch the entire length of said piece of ground, extending along its north line, said ditch to be eighteen inches wide at top, twelve inches wide at bottom and eighteen inches deep. That they will have said land cleared and ditch dug by the middle of the second year of the term of lease; that they will build a lawful fence around said land, and keep the said fence in good repair during the time of said lease; and in case they fail to comply with any of the foregoing stipulations, they agree to forfeit said lease. Said C. M. Winn also hereby leases unto the said D. F. Moore and R. L. Davis the following described piece of land, to wit: * * * * To hold for the term of four years from this date, said lease expiring the 27th day of December, 1891. And the said D. F. Moore and R. L. Davis, for themselves, their executors and administrators, do hereby covenant, to and with the said C. M. Winn, his heirs and assigns, that they will enclose said piece of land with a lawful fence, and have said land in cultivation by the close of the first year of lease; and that they will keep said fence in good repair until the close or expiration of said lease; and if they fail to comply with any of the above stipulations, they hereby agree to forfeit said lease.

"In testimony whereof, we have hereunto set our hands, this 28th day of December, 1887.

"Witness: "C. M. WINN,

"L. RUSSELL. "D. F. MOORE.

"R. L. DAVIS."

Moore and Davis entered upon the land under the above lease, and remained in possession during the years 1888 and 1889, and until they were dispossessed by appellant. On the 5th day of February, 1890, they were served with a notice from appellant, declaring the lease forfeited, and prohibiting their going...