(after stating the case). An essential element of the offence oí forcible entry, as defined by the statute (The Code, sec. 1028), is that the “lands and tenements, or term of years,” must be not simply in the constructive, but in the actual possession of the person whose possession is charged to have been interfered with. It is the invasion of such actual possession with strong hand or a multitude of people, or a degree of force greater than a simple trespass, that tends to produce a breach of the peace, whether it actually does so or not, that makes up a constituent part of this offence. By actual possession is not meant that the person having it is continuously present in person on the land, but that he actually exercises authority and control over it, whether personally present or not — as by having it cultivated or used for some purpose by his family or servants.
Hence, it must be charged in the indictment, by apt words, that the person whose possession has been disturbed was in the possession of the land at the time of the entry; that he was expelled therefrom, &c. Otherwise, the offence would not be charged.
In the indictment in question, it is not charged that the prosecutor was in possession of the land, and that he was expelled therefrom, &c. It was, therefore, properly quashed. The offence was not sufficiently charged.
It was suggested on the argument, that the charge that the prosecutor was “seized,” &c., sufficiently charged his *438possession of the land. Such was not its purpose or effect. It charged the nature of the estate, the relation of the prosecutor to it, and embraced only such possession as was necessarily incident to it, but not necessarily actual possession— it might be constructive possession only. Besides, it is not charged that the defendant was in possession at the time of the entry, or that it was consummated by his expulsion therefrom. By entry is meant taking possession by forcible means, indicated by the statute, and the offence is not complete until such entry is made. An ineffectual attempt to make such entry might constitute another different offence. State v. Mills, 2 Dev., 420; State v. Pollock, 4 Ired., 305; State v. Jacobs, 94 N. C., 950; State v. Walker, 10 Ired., 234 ; State v. Caldwell, 2 Jones, 469; Bish. on Cr. Law, sec. 484; Ros. Cr. Ev., sec. 536; Whar. Pre. Indts. and Pleas, 492.
No error. Affirmed.