State v. . Lloyd

Oct 5, 1881
Versions:85 N.C. 573
Ruffin, J.

There seems to -us to be several difficulties in the way of the state’s maintaining this prosecution. Conceding it to be" true generally, that the ownership of land bounded upon a highway carries with it the ownership of the soil to the center of the way, and that the law, nothing else appearing, will presume the one right from the other, we are still not entirely clear that the doctrine applies at all to the streets of a city, in which net only has the public for so long a time enjoyed the right of travel, but the city itself, the right to dig and construct sewers, lay pipe, and the like, thus appropriating to its use theland as distinguished from an easement. And supposing that the principle would ordinarily embrace persons owning lands lying in a city and bounded by the streets, we are not sure that we ought to allow the presumption to prevail against a defendant in an indictment, when the only description given, in the case, *575 of the possession of the prosecutor, is the above statement “ that he was in possession of a house and lot in the city of Raleigh, and occupied the same with his family,” without a word of explanation as to the situation of the house, or the character of his possession. These points however we do not decide, as there is another which in our opinion disposes of the case.

As has been repeatedly decided in this court, to constitute the offence of forcible trespass, there must bé such force used as to exceed a bare civil trespass. There must be an actual demonstration of force, as with arms, or a multitude of attendants, so as to create or make imminent a breach of the peace. State v. Covington, 70 N. C., 71, and the cases there cited. After a careful examination of al] the cases in our own state reports, and others, we have not found a single case in which the use of words however violent, insulting, and menacing they may have been, has been held sufficient to complete the offence, unless accompanied by some display of weapons, unusual numbers, or other outward sign of force; while on the other hand, we meet with several cautions from judges of the highest repute, against the growing tendency to magnify civil trespasses into public wrongs.

We cannot do better than refer to the opinion delivered by Judge Bykum in Covington’s case just cited. In a few words it covers the whole ground — stating the law and supporting it by just reasoning. In the conclusion of it he saj^s, the law does not allow its aid to be invoked by indictment, for rudeness of language, or even slight demonstrations of force, against which ordinary firmness will be a sufficient protection.

In the case of this defendant, there was not a show of force, either actual or intended. Without leaving his wagon, standing in the middle of the street, he engaged in a mere war of words with the prosecutor, and nothing more.

The case of State v. Hinson, 83 N. C., 640, more nearly *576 resembles the present case than any to be found in our reports, and that, as I learn from my associates, turned upon the fact that the defendant, armed, rode with great rudeness into the yard and up to the door of prosecutrix who was alone, and though ordered to leave, refused to do so, but continued to curse and insult her until she threatened to call for assistance. It was considered that the act of riding in to the yard was under the circumstances such a show of force as warranted the conviction, especially as it was proved by her very threat to call for assistance that she was put in actual fear. Here, there was no force used, and nothing said or done which ought to have intimidated a man of ordinary firmness. Judgment reversed and venire de novo.

Error. . Reversed.