Commonwealth v. Shattuck
58 Mass. 141
Mass.
1849
Check Treatment
Dewey, J.

The demurrer to this indictment raises the question as to the sufficiency of the allegations it contains to constitute a charge of an indictable offence. The indict ment concluding, as it does, with the averment contra formam statuti, may be sustained under our decisions as well as un der our statute law, if the facts charged constitute an offence either by statute or at the common law. Commonwealth v. Hoxey, 16 Mass. 385; Rev. Sts. c. 137, § 14. It is proposed, in the first place and more at large, to consider the point whether an indictment will lie at common law for a forcible entry.

The objection taken to such an indictment is, that the offence charged is a private injury, and one more properly cognizable under the head of civil trespass or private wrong, and not a matter of public concern, or affecting public rights. If it were a mere trespass, the objection must avail as it did in Rex v. Storr, 3 Burr. 1698. A merely unlawful entry upon the land of another, with technical force and arms, but accompanied with no acts beyond a simple trespass, is not an indictable offence. It is also undoubtedly true, that the English statutes having provided another mode of redress, more sffectual as to the speedy restitution of the land to the party *144from whom the same has been forcibly taken, than the proceedings by indictment would be, the former has been the mode of proceeding more usually resorted to in such cases; and the same is true as to the remedies in use, and the usual mode of redress provided in many of the states in this union.

But we apprehend that both before and since the enacting of the various statute provisions in England, the remedies for a forcible entry unlawfully made have been twofold, one by indictment at common Jaw, and the other by proceedings under the statutes. In Rex v. Bathurst, Sayer, 225, it was held, that an indictment lies at common law for a forcible entry into a dwelling-house and expelling the occupants. In Rex v. Bake, 3 Burr. 1731, Mr. Justice Wilmot says, “Undoubtedly an indictment will lie at common law, for a forcible entry, though the proceedings are" generally under the acts of parliament.” In Rex v. Wilson, 8 T. R. 357, 362, lord Kenyon says, “ There is no doubt that the offence of forcible entry is indictable at the common law, though the statute gives other remedies to the parties aggrieved.” 3 Chit. Crim. Law, 1131; Rose. Cr. Ev. 374, are also authorities to the same effect.

In this commonwealth, it seems to be assumed, that such an indictment would lie at the common law, in the opinion delivered by Mr. Justice Wilde in the case of Sampson v. Henry, 13 Pick. 36. In the report of the commissioners for revising the statute laws, in 1835, in their note to the first section of the one hundred and fourth chapter, in which they proposed a new section, not copied from any former statutes, which was to this effect: “ No person shall make entry into lands except in cases where his entry is allowed by law, and in such cases he shall not enter with force, but in a peaceable manner;” they say they are only introducing into the statutes a rule fully recognized as a part of our common law, and one plainly implied from the provisions of our existing statutes. Harding’s Case, 1 Greenl. 22, is to the same point.

This must be so upon sound principles, as the preservation of the public peace requires that the offence should be punished criminally. Individuals are not to assert their claims to real estate, and especially to a dwelling-house, in the act nal *145possession of another, by force and violence, and with a strong hand. The peace of the commonwealth forbids it. This principle does not in any degree interfere with the making of a formal entry upon land, preparatory to the bringing of an action at law, and which may be necessary to give a legal seizin to the party, but which leaves those in possession undisturbed as to the actual occupation. Nor does it embrace the case of a mere trespass upon land, as to which the civil re.medy is alone to be resorted to. To sustain an indictment for a forcible entry, the entry must be accompanied with circumstances tending to excite terror in the owner, and to prevent him from maintaining his right. There must at least be some apparent violence; or some unusual weapons; or the parties attended with an unusual number of people; some menaces, or other acts giving reasonable cause to fear, that the party making the forcible entry will do some bodily hurt to those in possession, if they do not give up the same. It is the existence of such facts and circumstances, connected with the entry, that removes it from the class of cases of civil injury, to be redressed in actions of trespass or other civil proceedings, and holds the party thus making an unlawful entry amenable to the public as for a public wrong.

Does the present indictment charge such an offence, as we have above described as that of a forcible entry ? Charging the entry to have been unlawfully made with force and arms, and with a strong hand, is a sufficient allegation to constitute the offence a forcible entry. The words “ with a strong hand” mean something more than a common trespass. By Lawrence, J., in Rex v. Wilson, 8 T. R. 362, these words are said to imply that the entry was accompanied with that terror and violence which constitute the offence. See Rastall’s Entries, 354; Bande's Case, Cro. Jac. 41.

It seems to us, therefore, that this indictment does well charge the offence of a forcible entry, and that such forcible entry is an offence at common law. We have considered it solely in the aspect of a charge of forcible éntry, which alone is sufficient to maintain the indictment, and renders it immaterial whether it might also be sustained as a charge of *146forcible detainer. So also as an offence against our statutes, if the case required it, it might be proper to consider whether the provision of the Rev. Sts. c. 104, § 1, already referred to, and directly prohibiting the doing of the act complained of here, would not make such act a statute offence, punishable under the Rev. Sts. c. 139, § 1, as a case where an act was made criminal by a prohibitory statute, but no particular punishment annexed to the offence.

If a forcible entry is thus made a statute offence, ther. the present conclusion of the indictment, charging it as ar. offence against the form of the statute, is correct. If, bow ever, it is only an offence at common law, then the allegation just referred to may be rejected as surplusage; and judgment maybe rendered upon the indictment,as upon an indictment for an offence at common law. In either view of the case, the demurrer must be overruled.

Demurrer overruled in the first case, and the exceptions overruled in the second.