28 S.E. 254 | N.C. | 1897
This is a criminal action, charging the three defendants with forcible entry and trespass. There was a verdict of guilty as to two of the defendants, third defendant not having been taken. The convicted defendants appealed, assigning as error the exclusion of certain testimony tending to show title in the defendants, and for the refusal of the court "to give the instructions he asked, and for instructions given." We think that the defendants' prayers for instruction, which were not given by the court, were properly refused; and we cannot consider the "broadside exception" to the charge as given. This principle is too well settled to need the citation of the long line of authorities, and it is sufficient to say that it was reaffirmed in three different cases at the last term of this Court in Hampton v. R. R.,
Thomas appears to have been in possession of the property, even if he were not at all times personally present at the exact spot. S. v. Bryant,
His refusal to give up the property on the preceding day was equivalent to forbidding the defendant to take it. S. v. McAdden,
While to constitute forcible trespass the possessor must be present and forbidding and objecting, it is not necessary that he should be present all the time. It is sufficient if he is present before the trespass is completed, which, if continued, becomes forcible after being forbidden, even if not so in its incipiency. The defendants were three in number; they took the property with a "strong hand," and one of them actually assaulted the prosecutor with what may have been a deadly weapon. S. v.(589) Lawson, supra; S. v. Davis, supra; S. v. Gray, supra; S. v. Woodward,
Affirmed.
Cited: S. v. Robbins,
