1 Me. 22 | Me. | 1820
At another dajr in the term, delivered the judg; tnent of the Court, as follows.
We are requested by the defendant’s counsel to consider the first cause, assigned in his motion in arrest of judgment, as a motion for a new trial. In the form, in which the subject is brought before us, we can take notice of no facts, but those alleged in the indictment, the cause assigned also is properly in arrest of judgment. The indictment is at common law. If the facts charged, therefore, do not constitute an indictable of-fence at common law, no sentence can be pronounced upon the defendant.
The earlier authorities do sanction the doctrine, that at common law, if a man had a right of entry in him, he was permitted to enter with force and arms, where Such force was necessary to regain his possession. [Hawk. P. C. Chap. 64. and the authorities there cited.] To remedy the evils arising from this supposed defect in the common law, it was provided by Stat. 5. Rich. 2. Chap. 7, that “ none should make any entry into any “ lands or tenements, but in cases where entry is given by d the law; and in such cases, not with strong hand nor with “ multitude of people but'only in a peaceable and easy man- “ ncr.” The authorities are numerous to show' that for a trespass,—a mere civil injury, unaccompanied with actual force or
The second objection that no seizin is alleged does not apply to indictments for forcible entries at common law. Under the statute of New-York against forcible entry, the party aggrieved has restitution and damages; and hence it is necessary that the indictment should state the interest of the prosecutor. The People v. Shaw cited by the defendant’s counsel, and the People v. King, 2 Caines 98. are cases upon the statute of that State. In Rex. v. Bake, Mr. Justice Wilmot remarks ; “ No doubt an “ indictment will lie at common law for a forcible entry though “ they are generally brought on the acts of parliament. On “ the acts of parliament it is necessary to state the nature of the “ estate, because there must be restitution, but they may be “ brought at common law.” In The King v. Wilson, Lord Kenyon says, “ No doubt the offence of forcible entry is indictable “ at common law, though the statutes give other remedies
With respect to the third objection : it is alleged in the indictment that the house was Calc’s dwelling-house in his actual and exclusive possession and occupation with his family, and that the defendant unlawfully entered, &c. On the whole we think the indictment contains sufficient matter to warrant a judgment upon the verdict which has been found against the defendant; and the motion in arrest is accordingly overruled.