12 N.C. 135 | N.C. | 1826
Lead Opinion
His Honor, Judge Mangum, instructed the jury that the question of title was wholly immaterial; that if they believed that the prosecutor had such possession of the house as is usually held in schoolhouses, on the Friday evening before the alleged assault, and had left it with an intent to return on Monday, that in law the prosecutor was in possession when the defendants entered, and they had no right to prevent him by force from going into the house, or to remove him therefrom after he had entered.
The jury having returned a verdict for the State, a rule for a new trial being discharged, and judgment rendered for the State, the defendants appealed. This case does not involve the question whether title can be resorted to when there are adverse occupants to decide the fact of possession. The fact of possession between Cely Weeks and the prosecutor being before the jury, the deed was offered to show that the same state of facts existed between one of the defendants and the prosecutor. It was not offered to show that title was in the defendant and not in the prosecutor, but to communicate to the defendant the possession of Cely Weeks, if she had one, to substitute him for her as to that fact, and for no other purpose. I think that the evidence should have been received. (137)
Addendum
It appears from the testimony of the prosecutor that he had the consent of the owner of the land to use the house as long as he pleased. There was no contract for that purpose; guarding her orchard from the inroads of the boys made none. Either party might alter their mind when they pleased; he might have left the house without any breach of contract, and the owner had the right of requesting him to do so, and enforcing the request by any lawful means. It appears that the defendant Weeks purchased the house of the owner. Notice of this was given to the prosecutor. He persisted in retaking possession of it, after the defendants had become possessed; and here I suppose that the assault and battery charged was committed. It does not appear that the defendants acted otherwise than to take up the prosecutor and put him out of *88 doors; and as one of them owned the house, and the other acted by his authority, they had a right under the circumstances of the case to do so, if they used no unnecessary violence. But to show this right in them, I think the deed from Cely Weeks to Pender Weeks ought to have been read in evidence. As it was not, a new trial must be granted.
Judgment reversed.