State v. . Earp

ClaeksoN, J. At the close of the evidence for the State, and at the conclusion of all the evidence, the defendants moved to dismiss the action or for judgment of nonsuit. C. S., 4643. The court below refused the motion, and in this we think there was no error. An exception to a motion to dismiss in a criminal action taken after the close of the State’s evidence, and renewed by defendant after the introduction of his own evidence, does not confine the appeal to the State’s evidence alone, and a conviction will be sustained under the second exception if there is any sufficient evidence on the whole record of the defendant’s guilt. S. v. Brinkley, 183 N. C., 720, 110 S. E., 783; S. v. White, ante, 1. The evidence tended to show that the prosecuting witness, Johnson, was in the actual possession of the stables and barn, Johnson’s mules were in the stables. The stables had been locked by him. Clifton Earp and Ray Earp, the defendants, in company with J. J. Norris, went to the stables, and Clifton Earp took a hammer and jerked the staples out “and opened the door” and turned the mules out, and he did the same in regard to the other stable. Ray Earp, the other defendant, was present aiding. The prosecuting witness, Johnson, was present-forbidding defendants. The defendants were indicted under C. S., 4300, which is as follows: “No one shall make entry into any lands and tenements, or term for years, but in ease where entry is given by law; and in such case, not with strong hand nor with multitude of people, but only in a peaceable and easy manner; and if any man do the contrary, he shall be guilty of a misdemeanor.” “Forcible trespass -is essentially an offense against the possession of another and does not depend upon the title.” S. v. Webster, 121 N. C., 586; S. v. Bennett, 20 N. C., 170. *167 In S. v. Armfield, 27 N. C., at pp. 210-11, it is said: “Tbe prosecutor was not compelled to prove that the defendants used actual force, before they could be guilty of the offense charged; for if the acts of the defendants, in the taking of the slave, tended to a breach of the peace, they were as much guilty of a forcible trespass as if an actual breach of the peace had taken place. We know the law to be, that where a person enters on land in the possession of another, and then, either by his behavior or speech, gives those who are in possession just cause of fear, that he will do them some bodily harm, if they do not give way to him, his entry is considered forcible, and therefore indictable. S. v. Pollok, 4 Iredell, 305. In the case of s. v. Fisher, 1 Dev., 504, it was held that the number of actors — three—by whom the prosecutor was overawed, and prevented from resisting, made their acts an indictable trespass.” If three men break open the prosecutor’s crib and take and carry his corn therefrom, his son being present and forbidding them, they are guilty of a forcible trespass. S. v. Drake, 60 N. C., 238. The court below charged the jury as follows: “That forcible trespass consists in entering upon land in the actual possession of another, with a strong hand. There must be-either actual violence used, or such' demonstration of force as is calculated to intimidate or alarm, or involve, or tend to a breach of the peace. The offense of forcible trespass is defined in some of the cases, to be the unlawful invasion of the possession of another, he being present, violently or with a strong hand. The high-handed manner of the invasion may be by a multitude of people, or with weapons. The force is sufficient if the party in possession must yield to avoid a breach of the peace.” Under the facts, as disclosed by the record, we can see no error in the charge, and the assignment of error made by defendants cannot be sustained. The gist of the offense of forcible trespass is the-high-handed invasion of the actual possession of another, he being present forbidding. Title is not involved. The force necessary should be such as is calculated to intimidate or alarm or involve or tend to a breach of the peace. Numbers of three or more are calculated to overawe resistance. S. v. Fleming, 194 N. C., 42. The conduct of defendants was more than a civil trespass, the entry, under the statute, can only be “in a peaceable and easy manner,” and “not with a strong hand nor with multitude of people.” Three or more are a-multitude. S. v. Simpson, 12 N. C., 504. The courts are open at all times for the redress of actual or supposed grievances. Men cannot take the law in their own hands. The court below charged the jury, on the question of possession: “The defendants contend that Johnson was not in possession of the land, and *168 they admit they took off the lock and turned the mules out, claiming that Johnson was not in possession o£ the land. • So it is a question for you to say.” Defendants’, witness, Norris, the landlord, under whom Clifton Earp claimed the possession, testified: “Jim Johnson farmed with me for two years, 1926 and 1927. I only had a cow. I had no stock of my own except a cow. I furnished him stables at my house to keep the mules in and a barn to keep the feed in.” On this testimony the prosecuting witness had actual possession of the stables. The charge, perhaps, was too favorable to defendants. We find in law No error..