87 N.C. 535 | N.C. | 1882
This court is of opinion that the evidence offered does not support the charge of forcible trespass, and that the defendants were improperly convicted and sentenced.
To constitute that offence, the act complained of must be done presentidomino, and must involve a breach of the peace or tend thereto. The injury done to the prosecutor by the loss of his corn, the law (537) will redress by a civil action. But before it can amount to a public wrong to be punished by indictment, there must be something done, at the time of the entry, to put the prosecutor in fear, or incite him to force either to resent his wrongs or protect his property; and as none of these things can happen in his absence, so neither can the offence be committed in his absence.
The title to the property is of no moment in forcible trespass. But it is the invasion of the actual possession of another and not his constructive possession, done in his presence and under such circumstances as endangers the public peace, that makes the offence.
"The very gist of the offence," says Judge PEARSON in State v.McCauless,
In the case at bar, the defendants may likewise have been (538) guilty of a forcible detainer, and probably are. But it is impossible for them to have been guilty of the offence charged, since their entry upon the premises was made in the absence of the prosecutor. And even admitting the better title to be in him, so that upon his coming into the field the law would presume the possession to be in him, still, it could not by relation affect the original entry of the defendants, and make that forcible, when in fact it was without force. *413
To sustain this prosecution upon such proof as was given of the possession, would be to convert an action of trespass into an indictment, as was said in State v. McDowell,
Error. Venire de novo.
Cited: S. v. Davis,