50 Pa. 495 | Pa. | 1865
The opinion of the court was delivered, by
A criminal prosecution is deemed in law to be malicious, when a crime is charged with malice and without probable cause. Where the proceedings are entirely irregular, the prosecutor, according to all the authorities, will be a trespasser, and the action to redress the injury must be trespass for the force applied ; and such is the case where the proceedings are in form a criminal prosecution, but the offence charged is not within criminal jurisdiction. This is definitely ruled in Maher and Wife v. Ashmead, 6 Casey 344, and in Baird v. Householder, 8 Id. 168. The principle of the rule is that the warrant is void, no crime existing to give it legality, and that an arrest under it is no more to be justified than any other illegal arrest and detention without warrant. Trespass in such a case is undoubtedly the remedy.
We have not the complaint on which the warrant was issued in this case before us: but the justice recites it to have been issued, on complaint of Henry 'Lott and George Buchite, school directors of Henderson township, “ for breaking open a school-house and taking possession, and detaining the same in said township, which was locked, with force and violence, on the 19th of September last:” and the warrant is for “ breaking and opening a certain
If this charge was right, it of course ended the case, .and any other assignment of error need not be considered. “ Forcible entry and detainer” is the denomination of a criminal offence, the nature of which its name defines. Its object is twofold: one to punish those who by force and violence, taking the law into their own hands, forcibly get'possession of lands and tenements in the occupancy of others; and secondly, to have restitution made to those whose possession has thus been taken from them by such force and violence. The Act of 1860 defines the offence to be, “ When any person shall with violence and a strong hand enter upon or into any lands or buildings, either by breaking open doors, windows, or other parts, or by any kind of violence or other circumstances of terror,” &c., “turn out by force, or by threats or menacing conduct, the party in possession, every person so offending shall be guilty of a forcible entry,” &c. A forcible detainer is also defined by the same act to be where “ any person shall by force and with a strong hand, or by menaces or threats, unlawfully hold or keep the possession of lands or tenements, whether the possession of the same was obtained peaceably or otherwise.”
The Act of 1700 simply provided that “ whoever shall violently or forcibly enter into the house or possessions of any other person within this province or territories, being duly convicted thereof, shall be punished as a breaker of the peace, and make such satisfaction to the party aggrieved as the circumstances of the fact will bear.” Judge Smith in his note .to this statute, 1 Smith’s Laws 1, says: “ The act in the text is analogous to the English statute of 5 Rich. 2, stat. 1, cap. 8, but which has been considered as not extending to Pennsylvania. But the remedy in cases of forcible entry and detainer is rendered effectual by the statutes of 15 Rich. 2, cap. 2, 8 Hen. cap. 9, 31, Eliz. cap. 11, and 21 Jac. 1, cap. 15, which have been adopted in practice and reported by the judges to extend here.” Under the Act of 1700 it has. been several times decided that to constitute the offence of forcible entry and detainer, there must be such acts of violence, or such threats, menaces, signs, and gestures as may give reason to apprehend injury or danger in standing in defence of the possession:
So we think in this case, and that the learned judge of tt)e Common Pleas took the right view of the warrant in his charge to the jury, and that this judgment must be affirmed.
Judgment affirmed.