99 Ga. 692 | Ga. | 1896
1. The definition of “forcible entry” embraced in section 338 of our Penal Code is substantially the same 'as the definition of this offense at common law. Every trespass upon the premises of another is, in :a certain sense, forcible —that is, committed with “force and 'arms”; but it by no
Tbe Court, in 'that case, was simply passing upon a demurrer to au indictment which, in the first count, did charge entry “with a strong hand,” and ‘tire fact that the premises were “in the peaceful possession of the prosecutor,” but failed to allege what estate the prosecutor had therein. This count was held not to be good; but the indictment was sustained upon the second count, which charged “that the defendant did unlawfully 'and injuriously, with force and 'arms, enter into 'the dwelling-house of the prosecutor.” The objection urged to tbis second count was, not that it failed to allege the presence of the prose-
In the course of our investigation, we consulted the American & English Ene. of Law, and encountered the assertion that it was not “necessary that 'the force -or violence should be used against the person of the- occupant,” but that “forcibly breaking into- -a house in the absence of the occupant” would constitute the offense -of forcible entry. (Title “Forcible Entry and Detainer,” vol. 8, page 107.) An examination of the cases cited in support of the text will show, however, that the decisions therein rendered do not purport to be declaratory of the common law, but were
We are the better satisfied with the conclusion reached in the present case when we consider that, 'a't common law, persons were subject 'to indictment only for wrongs committed against the public itself — mere civil injuries committed against individuals not being redressed under penal laws. No forcible entry was, under that law, punishable
2. The indictment in the present case, in a single count, charged the two offenses of forcible entry and forcible detainer. It has been held that this could properly be done. Blackwell v. The State, supra. That case, however, lays down the rule that where both offenses are thus charged, it is essential to a (conviction under the indictment that both- be proved. As the evidence in 'the case nowi under consideration (did not warrant a conviction of (a forcible entry, the verdict must he' set aside.
Judgment reversed.