State v. Drake, 60 N.C. 241, 1 Win. 241 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 241, 1 Win. 241

THE STATE vs. GREEN DRAKE AND OTHERS.

If th«<é awn break open the prnwwt^or’s eúH and tike nnd carry his mm Ihcrrfrora, his son being present and f.irbi ¡dina: them, they are guilty of an indictable trespass, and thn taking may be a'.’cried to be from the jioa-session of th* pros’nnior.

This was an indictment against three persons fpr a forcible trespass in taking and carrying away the .p’a’ntiff'a corn tried before Osborne, Judge, at Spring Term, 1864, of the Superior Court for Davie County.

The indictment charged “that William F. Miller, of &c., was lawfully possessed of a certain quantity of corn, &e , and Oreen Drake, N. H. C. Williams and Samuel Howard, with force and arms ami with ,strong hand, &o., did seize and take from the actual possession- of the said William F-, Miller, he being present, and forbidding the «ame by his son and agent, William II. Miller, the afore--laid twenty bushels of corn, and did then and there unlawfully, forcibly, violently and with strong hand, retain the possession of the said twenty bushels of corn, &e. The jury found a special verdict "as follows: ‘cthe prosecutor" had gathered bus corn .ami put it into a crib on his plantation and locked the crib and left home. In his absence the defendants moke open the crib and carried away a part of the corn, W. II. Miller, a'son of the prosecutor, was present and forbid the entry and the removal of the corn." Whether the defendants be guilty as charged the jury arc not advised. If the Court should be. of opinion that the defendants are. guilty, the jury find them guilty. If the Court should be of opinion that the defendants are not guilty, the jury find them not guilty. The Court being of opinion with the defendants, a verdict of not guilty was entered and judgment accordingly, and the State appealed,

Winston, Sr., for the State.

No counsel for the defendant in this Court.

Manly <L.

The judgment of the Superior Court upon the special verdict is erroneous. In the absence of the lather, the son had authority to forhiil the entry into the crib, and tbe entry with strong hand under such circum-etanccs is more than a civil trespass. The force is sufficiently manifest from the number of persons engaged, and from the violence committed on the building.

It is not necessary the owner should he present always in his house to forbid the entry of a trespasser, in order to continue it under the protection of the law against tin’s of-fence. A member of the family left in charge, forbidding, will have the same tff-efc.-

The possession of the son, is the possession of the father, and it ia.therefore,,properly laid as a trespass to the latter's possession. Upon the whole, we conclude the offence is well laid and the facts found in the special verdict, cousti-. tute a cate of guilt.

This should be certified to the Superior Court of Davie ’ Cointy, that the judgment may be reversed arid judgment for the State awarded;