156 N.C. 596 | N.C. | 1911
Tbe defendant Davenport and seventeen others were indicted and convicted, in tbe court below, of forcible trespass in tearing down three shacks, which bad been erected in a lumber or logging camp, and which were each about 10 feet long and 7 feet wide, made of poles and covered with tar paper, and had been built upon the land two or three days before the alleged trespass. The defendants have appealed to this Court and now allege that the learned judge who presided at the trial committed thirty-four errors in his several rulings during the hearing of the cause. The case had its origin in a dispute between the Roper Lumber Company and the Richmond Cedar Works over the title to a certain tract of land lying in that portion of the Dismal Swamp known as the Allen Swamp, which has as its northern boundary the dividing line between this State and Virginia, along which there is a canal running east and west with the said line. A careful perusal of the evidence taken in the ease convinces us that the prosecutor, representing the Roper Lumber Company, and the defendants, representing the Richmond Cedar Works, were, at the time of the alleged trespass, vying with each other in an effort to gain the actual possession of the premises, in order to gain some advantage in defending the title to the land. The Roper Lumber Company, by its servants and agents, had actual jjossession of the land known as Allen Swamp, at the place where the huts had been constructed. The defendants, representing the Richmond Cedar Works, entered upon this part of Allen Swamp while, the prosecutor was in actual and peaceable possession thereof, and ordered its servants and agents, who were then in charge of the same, to quit the premises.
An extract from the testimony of the principal defendant, T. S. Davenport, will suffice to show the essential facts of the case upon which our conclusion as to the law will be based:
“Ours (camps) were built eight days before the Eoper Company’s. The camps of the Eichmond .Cedar Works had been occupied all the time during those eight days and all full of men. I think there was close between thirty and forty men who had stayed in those camps in the Allen Swamp — the camps of the Eichmond Cedar Works. These camps were all close as a half a mile to the ones the Eoper Company put up. When I found they were there, I took my men and went there. First went to Hawks’ camp and said, ‘Hawks, I have come here to take possession of this camp; the Eichmond Cedar Works sent me here to hold possession of these woods, and I am going to take possession of this camp and cut it down and burn it.’ He says, ‘My things are all in there,’ and I said, ‘I will take care of the things; get them out’; and he and Sanders got them out. They came out of the camp and I cut the camp down and threw it on the fire. That was the end of that camp. Then I took my men and went out on down the ditch where they had just built three camps down there. That was on Wednesday. We went on to the Mathias camp. They were all standing outside of the camp, and I said, ‘Mr. Mathias, are you in charge of these woods now?’ He said, ‘Yes.’ I said, ‘I am going to take possession of the camps, cut them down and burn them up.’ I told him my reason, that the Cedar Works sent me there to hold possession and I was going to do it. He is the only man I parted my lips to. I then told him I was going to cut the camps up. He said, ‘You may cut the others down, but you won’t cut this one down.’ I said, ‘This is the best looking camp; this is the one I am going to take first.’ He
The contention of the defendant seems to be that they should have been allowed to show that they had constructive possession of the place where the trespass is alleged to have been committed, by reason of the fact that they were in actual occupation of the remainder of Allen Swamp; that the prosecutor, by its servants and agents, had unlawfully entered upon the land, which was the property of the Richmond Cedar "Works, and had wrongfully withheld the same, and that when they demanded possession of the land they were merely asserting the right and title of the Richmond Cedar Works to the same, and had no unfriendly feeling toward the parties in possession and did not intend to injure them.
Before entering upon a discussion of the main question involved in the case, we will refer to one technical objection made during the course of the trial by the defendants. When the solicitor had read the three indictments, the defendants moved that he be required to elect upon which count in each of the -bills he would rely. The court overruled this motion and held that it would not require the election until the evidence had been heard. The motion was not renewed at the close of the evidence. It appears that the solicitor abandoned all the charges except the one for forcible trespass, and did not prosecute for malicious injury to' property, and the judge so stated in the charge to the jury. It cannot be doubted now that the solicitor was not put to his election until the close of the evidence, or at least that the judge was not required to restrict the trial to any special count until he could intelligently do so by knowing what the evidence in the case would be. This was decided in S. v. Parish, 104 N. C., 679, where it was
The defendants proposed to prove how far the line of the land was from the State line, with a view of showing that the prosecutor’s servants, and agents had come from Virginia and squatted on the land, and had then avoided the service of process and a restraining order by crossing the line again into Virginia. They further proposed to introduce in evidence a map of the premises for the use of one of the witnesses in explaining his testimony. The witness stated that he did not require it for that purpose, as he was familiar with the land; and further, they offered deeds and other evidence for the purpose of showing the title to and possession of Allen Swamp outside of the locus in quo. All this evidence was excluded by the court, and, we think, properly. The facts intended to be established by the rejected evidence were not relevant to the case. It could make no difference whether the Eichmond Cedar 'Works owned the land or not, or whether they failed to obtain service upon the prosecutor in the suit brought for the possession of the land and for an injunction. The only question in the case is whether the prosecutor’s servants and agents were in possession of the particular land on which the trespass was committed, and whether the defendants attempted to oust them forcibly and violently. Forcible trespass is a crime against the
The principle governing such cases is clearly expressed by Judge Gaston in S. v. Bennett, 20 N. C., 170 (4 D. and B., 43) : “We perfectly agree with tbe judge that tbe guilt or innocence of tbe persons charged with respect to the offense described in tbe indictment did not depend upon tbe question whether Curry bad the right to tbe property, or tbe right to its possession, but whether he bad, in fact, tbe possession* thereof at tbe time when that possession was charged to have been invaded with such lawless violence.” It has ever been the definition of forcible trespass in this State that it is tbe high-handed invasion of tbe actual possession of another, be being present and forbidding tbe same, and the title is not in question. It is sufficient, to' constitute the offense, that the act complained of be done in tbe presence of tbe owner or person in possession (presentí domino) and must involve a breach of tbe peace or tend thereto. There must have been something done at tbe time of the entry to put tbe prosecutor in fear or incite him to force, either to prevent the wrongs or to protect his title to the property. Whether the title is in the prosecutor or the defendant is of no moment in forcible trespass. It is the invasion of the actual possession of another, and not his constructive possession, done
What is said by the present Chief Justice in S. v. Mills, 104 N. C., at p. 905, covers this case more fully, perhaps, than any other expression to be found in the cases. In substance, it is this: The offense of forcible trespass consists in entering upon land in the actual possession of another, with a strong hand. There must either be actual violence xised or such demonstration of force as is calculated to intimidate, or alarm, or involve, or tend to a breach of the peace. The use of force must be such as to create a reasonable apprehension in the mind of the adversary that he must yield to the demand made upon him in order to avoid a breach of the peace, citing S. v. Covington, supra; S. v. Pollok, 26 N. C., 305; S. v. Pearman, 61 N. C., 371; S. v. Lloyd, 85 N. C., 573. We are not called upon in this case to say whether or not it is necessary that the demonstration of force accompanying the act of invasion should consist either in a multitude of people or in the display of weapons, in order to become such an entry with a strong hand as will constitute the offense. Whether the entry is sufficiently violent will depend, to some extent, upon the circumstances of each particular ease. For example, in S. v. Hinson, 83 N. C., 640, the act of a man riding into the yard or curtilage of a house occupied only by a woman, after being forbidden so to do, and remaining there.cursing her, was held by this Court to be such an act of force as was calculated to intimidate her or put her
The learned counsel for the defendant, in the argument before us, urged that, at common law, if the party having the better right or title has lost his possession by the unlawful entry of another, he is entitled to regain it by the use of such force as is necessary for the purpose, provided it does not amount to an actual breach of the peace, whereas one not having a lawful right of entry is guilty of trespass if he goes upon the land with a strong hand under circumstances calculated to excite terror, although the force used does not amount to a breach of the peace. This doctrine, if it ever had any real existence at the common law, and this is extremely doubtful when the authorities are carefully examined and considered, has long since been repudiated by the courts and abrogated by statute. They rely upon what is said by Judge Pearson in S. v. Ross, 49 N. C., 315, but the force of this expression was greatly weakened, if not entirely destroyed, by the decision in S. v. Shepard, 82 N. C., 614, where it will be found that Qhief Justice Smith strongly intimates that the distinction thus made, if it ever existed, was swept away by our statutes. In 1 Hawkins Pleas of the Grown, ch. 28, at p. 495, we find the law thus stated: “It seems that, at common law, a man disseized of any land (if he could not prevail by fair means) might lawfully regain the possession thereof by force. But this indulgence of the common law, in suffering persons to regain the lands they were unlawfully deprived of, having been found by experience to be very prejudicial to. the public peace, it was thought necessary, by many severe laws, to restrain all persons from the use of such violent methods of doing themselves justice.” Blaekstone, whose book on the criminal law is of the highest authority, follows Hawkins, and in his fourth volume, at p. 148, says: “An eighth offense against the public peace
The case of S. v. Pollok, 26 N. C., 305, is a decisive one against the defendants. The only difference between the two cases is that the show of force in Poll'oh’s case was much less formidable -and impressive than it was shown to be in this ease. Judge Daniel there said it was unnecessary that the prosecutor’s possession was held under title if, at the very time of the forcible entry, it was peaceably held and enjoyed by him, and that personal violence is not an essential ingredient of the offense; but if there is such a show of force as to create a reasonable apprehension in the mind of the party in actual possession that he must yield to avoid a breach of the peace, and he does yield, it would be a surrender upon compulsion or force and such as would mate it a forcible trespass at common law. Proceeding, he said: “The defendant contended that the offense was not complete until some actual breach of the peace had been committed. But the law is, where the party, either by his behavior or speech, at the time of his entry, gives those who are in possession just cause to fear that he will do them some bodily harm if they do not give way to him, his entry is esteemed forcible, whether he cause the terror by taking with him such an unusual number of servants, or by arming himself in such a manner as plainly to indicate a design to back his pretensions by force, or by actually threatening to kill, maim, or beat those who continue in possession, or by making use of expressions which plainly imply a purpose of using force against those who make resistance,” citing Wilson’s case, 8 Term Rep., 351; Roscoe on Evidence, 374-377; 1 Hawkins Pleas of the Crown, ch. 64, sec. 27. If the, facts recited in that case constitute forcible trespass at common law, surely the facts of this case must receive a like construction; and when the statute of Richard II. is considered, there can be no doubt as to the criminality of the defendants’ conduct. This statute has been adopted, we believe, in most of the States of the Union. Discussing its provisions, the Court, in Scott v. Willis, 122 Ind., 1, said: “The owner of land who is wrong
'When the undisputed facts of this case are brought to the test of these principles, we find no difficulty in adjudging the defendants guilty upon their own best showing. The defendants formed themselves into a band of armed invaders, to execute their will and assert their alleged claim to the land, without regard to consequences and in defiance of law and order. They advanced upon the unpretentious and crude huts set up by the prosecutors’ servants for their temporary use and comfort, with all “the pomp and circumstance of war” — a small battalion armed and equipped to meet any emergency and to overcome all opposition. This doughty, band of warriors went forth to battle, bent on conquest or annihilation, and if they had not met with instant capitulation from a submissive enemy,
The defendants’ counsel cited Walker v. Chanslor, 17 L. R. A., 455, and Souter v. Codman, 14 R. I., 119, to support the position that one who has, in law, the title or right of possession may enter forcibly upon the land in the assertion of his right; but even a slight examination of those cases will disclose that they refer only to the' civil liability of the owner for such an entry, and hold that he would not be liable in a civil action for the same, that is, in an action qua/re clauswm, or trespass
All of which brings us to the conclusion that there is no reason why we should halt between two opinions in passing upon the guilt of the defendants. The evidence is all.one way,
If we may compare this transaction with a great historical event, when Lord George Gordon assembled his followers in St.' George’s Fields to march upon Parliament and present their petition against Popery, we find that, while they were engaged in the exercise of the lawful right of petition, one of the highest and most sacred constitutional rights of the subject, and while their leader was afterwards acquitted by the jury, influenced as they were by the great skill and eloquence of Erskine, and not because he was less a lawbreaker, the Court of King’s Bench {Lord Mam-field presiding), before which he and his followers were tried, did not listen with much patience or consideration to the plea that the righteousness of the cause justified the offense, and many of his less fortunate adherents were convicted of treason and executed. Charles Dickens, in his graphic description of the Gordon riots in Barnaby Eudge, makes Simon Tappertit say: “What’s the matter here? Do you call this order?” Well might he thus exclaim, for not even can the most sacred right be unlawfully and violently enforced; and so the Court decided. 21 State Trials, 485 (563).
All the testimony offered by the defendants to show a constructive possession, that is, a possession of some other part of the land under a deed or color of title, was irrelevant and properly excluded by the court.
There are one or two of the other exceptions which require some notice. In his address to the jury, one of the prosecuting attorneys used this, language: “The jury should find the defendants guilty, as their fines will be paid by the Eichmond Cedar Works, a foreign corporation with headquarters in Virginia, a foreign State, where its officers sit back with slippered feet and direct this thing to be done.” The defendants objected to these remarks at the time they were made, and the judge fully cautioned the jury, not at that time, but in his charge, to disregard them and to confine their inquiry to the single question as to the forcible entry. We think the caution was sufficient, but if not, the defendants should have requested the judge to make
But it must not be understood that we approve or commend the language of the attorney. It was a clear abuse of the privilege of counsel, as argued by defendants, to use such word§ in debate before the jury. The State does not ask for the conviction of a defendant except upon the facts and the law, stripped of all extraneous matter — the naked facts — and anything done which is calculated to prejudice the jury should be promptly rebuked by the presiding judge, and such instructions given to the jury as will remove all prejudice and restore their minds to an equilibrium, readjusting the , unsteady balance, so that justice may be administered fairly and impartially. This is an important matter, and judges cannot be too alert or too much
In this case the judge responded fully and adequately in his charge to the objection, and the remarks of the counsel are, therefore, presumed to be harmless. They were not what may be called a “gross” breach of privilege. It must be assumed that the jurors were honest and intelligent enough to heed the warning of the court. Besides, the defendants are guilty on the admitted facts, and, therefore, in no degree have they been prejudiced.
The remaining objection to the conviction is that Davenport’s associates were not aiders and abetters, or, at least, that the court erred in giving the following instruction: “If one party was committing the acts as charged, and others were present, either, participating or ready and intending to aid or assist if it became necessary, all would be equally guilty.” The defend
We have discussed this case at much greater length than we would otherwise have done, because the learned and able counsel for the defendants insisted' most earnestly and zealously that no forcible trespass had been committed under the law as laid down by the standard authorities, and we, therefore, deemed it proper to review and restate the law in a matter so vital to
It may be added tbat tbe defendants could have been properly indicted and convicted either of a forcible trespass, a riot or rout (S. v. Haithcock, 29 N. C., 52; S. v. York, 70 N. C., 66), or an unlawful assembly (2 McLain Or. Law, see. 1003), all misdemeanors at common law; and tbe sentence pronounced in this case by tbe able and humane judge, which was mild, considering tbe aggravated circumstances, has, therefore, worked no legal injury to them.
There is no apparent error in tbe case, and it must be so certified.
• No error.