2 N.W.2d 211 | Wis. | 1942
Prosecution of J. H. Carroll on two counts charging that on June 15, 1940, he committed an assault in violation of sec. 340.57, Stats., and that he wilfully, maliciously, and wantonly destroyed and removed personal property in violation of sec.
"I am satisfied from all the credible evidence that the defendant entered the house and committed an assault and battery on Mrs. Kehring. He grabbed her by the arm and left marks on her arm, and she went to a doctor for medical attention. . . . I am also satisfied from the testimony that the assault took place in the portion of the house on the Kehring side of the line, and also in the portion of the house on the Carroll side of the line. I am of the opinion that the defendant used more force than was necessary under the circumstances, and for that reason is guilty of the offense charged in count one of the information or complaint. . . . It is evident that he did not know where the line ran through the premises at the time the assault was committed for the reason he caused a survey to be made some months after this to determine where the line did run. Regarding the charge in the second count . . . I am of the opinion that, according to the *629 evidence, he is guilty. It is true that the damage inflicted on the furniture was of a minor nature, but it doesn't seem to me that under the circumstances he was justified in removing or throwing the furniture out of the building in question. If he wanted this furniture removed he should have proceeded in a legal manner. It is apparent from the testimony that at the time the defendant threw out the furniture and committed an assault he was angry and evidently lost his temper. He was not justified in either committing the assault or throwing out the furniture in the manner in which he did, and I am of the opinion that he is guilty on both counts."
In view of the fact found by the court that Carroll used more force than was necessary under the circumstances, his contention on this appeal that he was not guilty of assault and battery under sec. 340.57, Stats., because he had a right to use a reasonable amount of force to eject Mrs. Kehring as a trespasser could not be sustained. However, even if the Kehrings' re-entry on June 3, 1940, constituted a trespass, she clearly was in peaceable possession on June 15, 1940, when Carroll attempted to forcibly eject her. Consequently, there is applicable to his conduct the rule that where one who is not in the actual possession of land, although lawfully entitled thereto, forcibly ejects another who is in peaceable possession thereof, he is criminally liable for the assault. 4 Am. Jur. p. 170, § 80. As the court said in Hickey v. United States (9th Cir.), 168 Fed. 536, 537, 22 L.R.A. (N.S.) 728, in sustaining a conviction for assault and battery committed by the defendant in attempting to remove persons from his mining claim, after he had applied previously, but without avail, to the district attorney's office for assistance to have them removed —
"There was manifestly a dispute between the parties about the right of possession as it respects the claim, and the defendant had no right to attempt to, settle that dispute by undertaking to eject Powell and his men by physical force, after they had refused to vacate the premises, when so ordered. *630
Even if the defendant were the owner, with a perfect title, he had no legal right to oust trespassers in that way. The law provides peaceable methods for obtaining possession where wrongfully denied, and a resort to, force and violence, without pursuing the due course of law, is seldom excused. . . . There is no warrant of law for such a course of action. It would lead to riot and bloodshed, and make every man the judge of his own property rights and the executioner of his own judgments. A person has a right to defend his domicile or habitation against the intrusion of others, and to apply ample force to remove any such found therein. Long v. People,
The rule which was thus applied is in accord with the inhibition in sec. 291.03, Stats., that where entry into real property is given by law, such entry shall not be "with strong hand nor with a multiple of people, but only in a peaceable manner." And in that connection there is provided in this section the remedy that —
"Any person who shall make such unlawful or forcible entry and detain the same, or who, having peaceably entered upon any property, forcibly holds the possession thereof, may be removed therefrom and fined in the manner provided in this chapter."
These provisions are in accord with the public policy which is the basis likewise of the rule that the owner of personal *631
property which is in the peaceable possession of another has no right to retake the property by force. As the law provides ample redress for the recovery of the possession of property, whether real or personal, and for the recovery of damages for injury sustained by the unlawful withholding of such possession by another, the owner who is not in possession, although lawfully entitled thereto, has no right to attempt to take possession by force; and the law will not justify his resorting to violence and the breach of the public peace in attempting to do so. "Any other rule would substitute the strong arm for the court of justice, and promote lawbreaking and violence." Monson v. Lewis,
Defendant contends that the conviction on the count that he wilfully, maliciously, and wantonly destroyed household furniture cannot be sustained because the state failed to prove that his conduct in this respect was malicious and wanton, as well as wilful, and also failed to prove that the property was destroyed. On the other hand, the state contends that in order to convict under sec.
The facts that the complaint charged Carroll did "destroy and remove" personal property, without expressly stating also that he injured the property, and that, on the other hand, the proof does not establish that the property was destroyed, although it does sustain the court's finding that the property was injured, does not result in such a variance between the facts alleged and the facts proven as to render the conviction unwarranted because of a failure of proof. The charge that defendant did "destroy" the property obviously includes charging it was injured by him, and was therefore adequate to apprise him that injury thereto was charged. Moreover, there was no showing or contention on the trial that he was misled in that respect. If there had been then any such contention, the allowance of an amendment of the complaint so as to also expressly charge injury would have been warranted under the provision in sec. 357.16, Stats., which authorizes such an amendment "in all cases where the variance between the complaint, indictment or information and the proof is not material to the merits of the case." Under the circumstances the complaint can be considered amended to conform to the proof. Anderson v. State,
By the Court. — Judgment affirmed. *634