State v. . Whitfield, 30 N.C. 315

State v. . Whitfield

30 N.C. 315 | N.C. | 1848

The defendant was convicted upon an indictment which (316) charged that he and another unlawfully, forcibly, injuriously, and with strong hand, did break and enter into a certain kitchen of J. D., he, the said J. D., being then and there in peaceable and quiet possession of the same; and having so as aforesaid broken and entered into the said kitchen, then and there being in the actual possession of the said J. D., unlawfully, forcibly, injuriously, and with strong hand, did then and there continue and remain for one day, the said J. D. being then and there actually present and forbidding them so to do. The indictment concluded at common law; and, on motion of the defendants' counsel, the judgment was arrested, and an appeal was taken for the State. The reason for the motion in arrest of judgment is not stated in the record, and the Court does not perceive any.

Since Bathurst's case, cited in Storr's case, 3 Bur., 1698, andWilson's case, 8 T. R., 357, it seems to have been considered settled that for a violent entry into the possession of the house of another, laid to be done manu forti, an indictment will lie at common law. The latter was a solemn decision on demurrer. In this State the doctrine has been adopted. In S. v. Fort,20 N.C. 332, it was, indeed, held that the indictment was not good which charged only that the defendants broke the window of the prosecutor's house, though laid manu forti, because the facts themselves only amounted to a civil trespass, and not to a breach of the peace, nor tended directly to it nor to the terror of the owner, as they might do if the owner were present. But it was distinctly laid down that "the violent taking or withholding of the possession of a man's house is a public offense," and that "strong hand" is technically appropriate (317) to designate the degree of violence which renders it so. In the language of Lord Kenyon in Wilson's case, "God forbid that such an act should not be an indictable offense. The peace of the whole country would be endangered if it were not so." To the decision of this Court, just cited, are to be added the subsequent cases of S. v. Pollok,26 N.C. 303, and S. v. Tolever, 27 N.C. 452, which are in point.

After those cases we cannot suppose the decision of the Superior Court was made upon the ground that the act laid in the indictment is not an offense, if done by a stranger and mere *232 wrongdoer. Indeed, the counsel here takes a different objection, and inform us that upon that the judgment was arrested by his Honor. It is that it does not appear upon the indictment that the defendants were strangers and wrongdoers; and therefore they may have been the owners of the house and had the right to enter as they did. The objection is founded on the passages in 1 Hawk. P. C. B., 1, ch. 28, sec. 1, and 4 Bl. Com., 148, that at common law one disseized has a right to enter into his lands by force, if he can do so without committing a battery on the person in possession. It is not necessary to say here how that is, but we may leave it to be decided when the question shall arise, as was done in Rex v. Wilson, For, admitting that doctrine, the indictment is sufficient without a direct negative averment that the defendants had no title to the lands. In general, negative averments are not necessary in pleading, unless to meet some exception or proviso in a statute (1 Chit. C. L., 283); and Wilson's case is a direct authority that the indictment is good in this case without it. There the indictment charged that the defendants "unlawfully and injuriously, andwith strong hand, entered into a certain mill and lands and houses, being in the possession of M. L., etc.," without any other reference to the defendant's right; and the Court said, when speaking of the passage in Hawkins, that, it appearing by the indictment that the defendants unlawfully entered, the (318) Court could not intend that they had any title. If they had, and that would prevent their entry upon the prosecutor's possession from being an offense, it was matter of defense upon evidence at the trial, and, as the case comes here, we must presume they showed no title; otherwise they would have brought up the question in a different form. It was erroneous, therefore, to arrest the judgment; and this must be certified to the Superior Court, that sentence may be given on the verdict.

PER CURIAM. Ordered accordingly.

Cited: S. v. Ross, 49 N.C. 318; S. v. Mosseller, 106 N.C. 497. *233