31 S.E. 667 | N.C. | 1898
Cheatham, Lawson, and Collins are indicted for forcible entry and detainer. Lawson and Collins pleaded former acquittal, as well as not guilty. The solicitor admitted that they had been tried for forcible trespass at last term for this same transaction and acquitted. *509
The court erred in refusing the prayer of defendants Lawson and (742) Collins to instruct the jury to sustain the plea of former acquittal as to them, though the jury cured this as to Collins by acquitting him. It is true the same act, with an additional circumstance, may be an offense against two statutes (S. v. Stevens,
The defendant Cheatham further contends it was error to refuse the prayer for instruction that there was no evidence to warrant a conviction as to him. There was evidence by the State that the prosecuting witness was in possession of the land, had sowed rye thereon, and in March the three defendants came on the land and began plowing up the rye, that he was not present when they entered, but when he learned of it he went where the defendants were and ordered them to desist, but they refused, and went on and plowed up the rye, and he was "afraid to say much to them," and did not stay long; that they worked there that day and Cheatham held and worked the land that year. In the defendant's evidence it appeared that the three went on the land with plow, hoe, axe and mattock and acted as prosecutor stated. It is true defendants denied possession of the land by prosecutor, and asserted that there was no demonstration of force. Upon this conflict of evidence the court properly submitted the case to the jury, and we presume under (743) proper instruction, as the charge is not sent up, not being excepted to. The appearance of defendants in such force, with axe, mattock, hoe and plow, with the avowed and executed purpose to plow up the rye the prosecutor had sown, and in spite of his personal protest was reasonably calculated to put him in fear, and he says he was in fact put in fear, was "afraid to say much," and left the invading host in possession then and for the balance of the year, which was some evidence of the truth of his statement.
Indeed, in S. v. Davis,
The defendant Cheatham further relies on S. v. Simpson,
Besides, there may be a demonstration of force by less than three. S. v.McAden,
For failure to give the instruction asked upon the plea of former acquittal there must be a new trial as to Lawson.
There is no error as to Cheatham.
Cited: S. v. Robbins, ante, 738; S. v. Elks,
(745)