State v. Tolever, 27 N.C. 452, 5 Ired. 452 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 452, 5 Ired. 452

THE STATE vs. WILLIAM TOLEVER & AL.

Where the prosecutrix was in the peaceable possession, with her family, of 4 dwelling-house and its appurtenances, and four persons entered the yard of the house with hostile or unkind feelings and manners, against the will of the prosecutrix, to injure and insult her, and refused to go away when she hid them, and they had a common purpose in so doing, and abetted each other — Held that such acts and purposes rendered the parties liable to an indictment for a forcible trespass.

An indictment tor forcible trespass will lie at common law, if the facts charged amount to more than a bare trespass.

When the name of the county is mentioned in the margin of the indictment, and it is stated that the dwelling-house, on which the forcible trespass is alleged to have been committed, was “ Mere situate and being,” this must refer to the county mentioned in the margin.

The ease of The State v. Bell, 3 Ired. 506, cited and approved.

Appeal from the Superior Court of Law of Ashe county, at the Spring Term, 1845, his Honor Judge Bailey presiding.

The defendants, "William Tolever and Caroline Tolever, were tried upon the following indictment, to wit:

State of North Carolina, ) Superior Court of Law, Ashe County, )ss' Spring Term, 1843.

The jurors for the State, upon their oath, present that William Tolever, late of the said county, laborer, Elizabeth Tolever, Caroline Tolever and Louisa Tolever, all late of said county, spinsters, on the 1st day of April, 1843, with force and arms into a certain yard and dwelling house, then situate and being, and then and there in the possession of Polly Long, unlawfully, violently, forcibly, and with a strong hand, did enter into, and then and there unlawfully, violently, forcibly, and with a strong hand, did throw certain filth and dead carcasses into the said house, she, the said Polly, then and there being therein, and then and there did remain cursing, abusing and threatening the said Polly for a long time, to wit, for one half hour, and other wrongs then and there did, to the great terror of the said Polly Long, then and there being, and against the peace and dignity of the State.”

It is unnecessary to detail the testimony introduced on the trial as the instructions of the presiding judge sufficiently indicate its general nature. The judge instrueed the jury, that if the defendants, now on trial, together with Elizabeth, the mother, and Louisa, the other daughter of William, went into the space, that had been inclosed as a yard, in a peaceable and friendly manner, they would not be guilty; but if the four went into the said space, with hostile or unkind feelings and manner, against the will of Polly Long, to injure or insult her, and there remained against her will and refused to go away when she bid them,- and they had a common purpose in so doing and abetted each other, although there was no fence around the said space, yet such acts would constitute a forcible tresspass, and the defendants would be guiltty. The jury found the defendants guilty. A motion was then made in arrest of judgment, for that the offence is not charged to have been in the county of Ashe. This motion was overruled, and judgment being rendered pursuant thereto, the defendants' appealed.

Attorney General for the State.’•

Boyden for the defendants.

Daniel, J.

The prosecutrix was quietly in possession of' the premises, under a parol lease then unexpired. She was personally present in the house with her family of children, ‘ when the defendants entered the yard of the house. The judge told the jury, that if the two defendants,- with Elizabeth Tole-ver and Louisa Tolever, (the two latter’ of whom were not? tried) entered the yard with hostile and unkind feelings and manner, against the will of the prosecutrix, to injure or insult her, and there remained against her will and refused to go away when she bid them, and that they had a common pur-' pose in so doing, and abetted each other, such acts would make them guilty of a forcible trespass. An indictment will.' lie at common law for forcible entry, if it contain such a state ment, as shews that the facts charged amount to more than a bare trespass; as by violently taking and keeping possession jantjs menaces, force and arms, without the authority of the law, 1 Rus. on Crimes, 283, Four persons entered the yard of the nearly defenceless prosecutrix, with a common intent (as the jury have found) to abet each other in injuring and insulting, and actually insulting her with abusive language and gestures, and thrusting from the yard, through her broken door, the carcass of a dead animal. These facts shew that it was more than a bare tresspass. They had a-tendency to alarm some, and cause others to commit breaches of the peace. We think that the charge of the court was correct.

Secondly: The defendants moved in arrest of judgment, because the offence is not, as they say, charged to have been c'Onrfmitted ill the county of Ashe. The answer is, that the county of Ashe is set forth in the margin of the indictment • and the body of the indictment then proceeds to mention the defendants by name t!of said county,” and that they “into a certain yard and dwelling house, there situate and being, and then and there in the possession of Polly Long, unlawfully did enter, &c.” The words ilthere situate and being” must refer to the county mentioned in the margin of the indictment. State v. Bell, 3 Ired. 506. This motion was properly overruled by the Court. This opinion must be certified to the Superior Court of Law for the county of Ashe.

Per Curiam, Ordered accordingly.