10 N.C. 381 | N.C. | 1824
"The jurors for the State, upon their oath, present that Robert Thompson and Jonathan Langford, late of the county of Granville aforesaid, farmers, on the 16th day of August, A.D. 1823, with force and arms at the house of one Sarah Roffle, an aged widow woman, situate in the county aforesaid, did then and there wickedly, mischievously, and maliciously, and to the terror and dismay of the said Sarah Roffle, fire several guns, and then and there did shoot and kill a dog belonging to said house, without any legal authority, against the peace and dignity of the State."
THE defendant was found guilty and the judgment arrested below, whereupon the State appealed. All that the law requires in an indictment of this kind (382) is that the facts shall be so charged as to show that a breach of the peace had been committed, and not merely a civil trespass. Laying the offense to have been committed vi et armis does not itself show this, for that is no more force than the law implies; and these words, as applied to forcible entry, were not deemed sufficient to show that a breach of the peace had been committed in the cases from 3 Burr., 1700, 1736, and accordingly the indictments which contained only those words were quashed, while those containing "with a strong hand" were sustained. But the case of Rex v. Storr contains internal evidence that if actual force had been shown on the face of the indictment, the words vi etarmis would have been sufficient; for the counsel for the prosecution, in arguing, say: "One man may commit a breach of the peace, though not a riot; he might be armed with pistols for aught that appears, and this might be possibly proved." To this the Court answers: "Coming with a pistol, though possible, is not to be supposed"; thereby implying that if the fact of coming with a pistol had been laid in the indictment it would have been a *212 circumstance in itself naturally implying such a degree of force as was indictable; and the want of this violence cannot be supplied by the insertion of the common formal words. The doctrine of these cases is confirmed by the case of Rex v. Wilson and others, 8 Term, 357, which was an indictment at common law, charging the defendants with having unlawfully and with a strong hand entered the prosecutor's mill and expelled him from the possession. This indictment was demurred to because upon the face of it it charged only a (383) private trespass and not a public breach of the peace indictable. But the demurrer was overruled, the Court holding that the words "with a strong hand" implied that degree of force which constituted the offense; that no particular technical words are necessary in such an indictment, but that it should appear that such force which and violence were used as constituted a public breach of the peace. It is true that some stress was laid upon the circumstance that the twelve defendants, with force of arms and with a strong hand, expelled the prosecutor. The principles ascertained in these cases show, beyond a doubt, that this indictment is maintainable, for in it is laid an actual and violent breach of the peace, which does not require the aid of the words "with strong hand," and such a breach of the peace as, if set forth in those indictments in 3 Burr., they would not have fired been quashed. These men were armed with guns, which they fired at the house of an unprotected female, thus exciting her alarm for the safety of her person and her property. This is the corpus delicti; the killing the dog is laid as a matter of aggravation and to show the temper of mind by which the defendants were impelled. It would have been, therefore, quite superfluous to state any ownership in the dog. If any doubt can exist that the offense so charged amounts to a breach of the peace, it will be removed by what is said by Sergeant Hawkins in a passage deriving additional authority by being transcribed by that judicious writer, Dr. Burns, into his book on Justicesof the Peace, title "Affray." Although no bare words in the judgment of law carry in them so much terror as to amount to an affray, yet it seems certain there may be an affray when there is no actual violence; as when a man arms himself with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people, which is said always to have been an offense at common law, and is strictly prohibited by statute." 1 Hawkins, 136. On these reasons (384) and authorities I think the judgment must be reversed.
HALL and HENDERSON, JJ., concurred.
PER CURIAM. Reversed. *213