State v. King, 74 N.C. 177 (1876)

Jan. 1876 · Supreme Court of North Carolina

74 N.C. 177

STATE v. A. M. KING.

In order to constitute a Forcible Trespass there must be some demonstration of force as distinguished from more nor s: as by a display of weapons, or other outward signs of violence, or by numbers, wliiih supply the place of violence, and are equally cnlculited to put in fear.

(Stater. Hay, 10 Ired. 39; State v. Covington, 70 N. ('. Rep. 71; State v. Armfield, 5 Ired. 207; State v. Pearman,, Phil. Pep. 371, and State v. Phifer, 65 N. 0. Rep. 321, cited and approved.)

This was an indiotment tried before O uud at Fall Term, 1875, of Stokes Superior Court.

The indictment contained two counts: one for obtaining goods by false pretense, and the other for forcible trespass. Upon the trial the defendant moved the court to direct the Solicitor for the State to elect as to the count upon which the defendant should be tried. The motion was overruled by the court and the prisoner excepted.

The State introduced one Wilson, the prosecutor, as a witness, who testified that some time during the year 1875, the defendant came into his store, in the county of Stokes, and desired to purchase of him a bolt of domestic. That lie at. first declined to sell, telling the defendant that his wife desired the cloth for her own use. The defendant insisted on buying-it, promising the witness that he would pay him the money- and he could buy other goods of the kind by the time his. wife would need it. The witness then measured off the cloth and laid it on the counter telling the defendant that it came to-$3.55. The defendant picked it up, carried it to his horse, which was hitched in the road about five paces from the store and laid it across the saddle. He then returned to the store, walked up to the counter, felt in his pocket and taking out some money, (witness could not say how much) told the witness that he had an order on him for the cloth from one Vm., Edwards which he must take. The witness replied, “ you. promised me tbe cash, I can’t take an order from Edwards; that tlie order was just but be could not accept it, that be must bave tbe money.” The defendant then turned and walked out toward bis horse. The witness followed, and as tbe defendant was about mounting, told him not to carry off bis goods until be bad paid for them. Tbe defendant then started to ride off, the witness being present, and throwing down tbe order looked back at tbe witness and said with an oath, “ I bave got tbe goods, help yourself if you can.” No other person was present. The defendant made no other demonstration of force.

His Honor instructed tbe jury that tbe evidence did not sustain tbe allegation contained in the first count and the Solicitor abandoned tbe same.

Tbe counsel for tbe defendant then asked tbe court to charge tbe jury that tbe proof did not sustain the allegation of forcible trespass. Tbe court declined to charge as requested, but charged tbe jury that if they believed tbe witness tbe defendant was guilty of forcible trespass as charged in tbe second count of tbe bill of indictment. The defendant excepted.

Tbe jury rendered a verdict of guilty, and thereupon the defendant moved for a new tidal. Motion overruled and defendant appealed.

No counsel in this court for tbe defendant.

Attorney General Iiaryrove, for tbe State.

Bynum, J.

This case is governed by tbe decisions In tbe State v. Ray, 1 Ired. 39, and tbe State v. Covington, 70 N. C., 71, where it is held, that to constitute a forcible trespass, there must be some demonstration of force, as distinguished from mere words, as by a display of weapons, or other outward signs of violence, or by numbers, which supply the place of force, and are equally calculated to intimidate or put in fear, as was tbe case _of tbe State v. Armfield, 5 Ired., 307, and State v. Pearman, Phil. 371, cited by the Attorney Gfen-eral. There was no such parade of force or numbers in our •case, but bare words only. There is error.

The other count, for cheating by false pretenses, on the intimation of the court that it could not be sustained, was abandoned by the Solicitor. Perhaps, as framed, it is insufficient, but the attention of prosecuting officers is called to the case of the State v. Phifer, 65 N. C. 321, and the law of this State, as there announced, as affording an indictable remedy in most cases of fraud and meanness like this. It is there laid down that where there is a false representation of a subsisting fact, calculated to deceive, whether the representation be in writing or in words or in acts, by which the defendant obtains something of value from another without compensation to him, it is indictable as a cheat by false pretenses. The defendant here, in substance, represented to the merchant, that he had the money in his pocket, and would pay down the-cash as soon as the cloth was measured, and, by this false rep-resention, obtained the goods. I incline to think that Phifer’s case covers this, but the question is not now presented, and we do not decide it. Certain it is, that unless such offences' can be thus reached, it is incumbent upon the Legislature, in these times of homesteads and exemptions, where a civil action affords no redress, to protect society and trade against such dishonesty, by some adequate legislation.

Per Curiam. Judgment reversed and venire de novo„