Harding's Case

Preble J. At another dajr in the term, delivered the judg; tnent of the Court, as follows. We are requested by the defendant’s counsel to consider the first cause, assigned in his motion in arrest of judgment, as a motion for a new trial. In the form, in which the subject is brought before us, we can take notice of no facts, but those alleged in the indictment, the cause assigned also is properly in arrest of judgment. The indictment is at common law. If the facts charged, therefore, do not constitute an indictable of-fence at common law, no sentence can be pronounced upon the defendant. The earlier authorities do sanction the doctrine, that at common law, if a man had a right of entry in him, he was permitted to enter with force and arms, where Such force was necessary to regain his possession. [Hawk. P. C. Chap. 64. and the authorities there cited.] To remedy the evils arising from this supposed defect in the common law, it was provided by Stat. 5. Rich. 2. Chap. 7, that “ none should make any entry into any “ lands or tenements, but in cases where entry is given by d the law; and in such cases, not with strong hand nor with “ multitude of people but'only in a peaceable and easy man- “ ncr.” The authorities are numerous to show' that for a trespass,—a mere civil injury, unaccompanied with actual force or [26] violence, though alleged to have been committed with force and arms, an indictment will not lie. But in Rex v. Bathurst, Sayers' Rep. 226. the Court held that forcible entry into a man's dwelling-house was an indictable offence: at common law, though the force was alleged only in the formal words vi el armis. In Rex v. Bake, 3 Burr. 1731. it was held that for a forcible entry an in--dictment will lie at common law ; but actual force must appear on the face of the indictment, and is not to be implied from the allegation, that the act was done vi el armis. In the King v. Wilson, 8 D. & E. 357. an indictment at common law charging the defendant with having unlawfully and with a strong hand entered the prosecutor’s mill, and expelled him from the possession, was held good. In this latter case Lord Kenyon remarks “God forbid these facts, if proved, should not be an indictable “ offence ;—the peace of the whole country would be endangcr- “ ed, if it were not so.” The case at bar is a much stronger one, than either of those cited. The peace of the State would indeed be jeopardized, if any lawless individual, destitute of property, might, without being liable to be indicted and punished, unlawfully, violently, and with a strong hand, armed with an axe and auger, forcibly enter a man’s dwelling-house, then m his actual, exclusive possession and occupancy with his wife and children—stave in the doors and windows, culling and destroying, and putting the women and children in fear of their lives. The second objection that no seizin is alleged does not apply to indictments for forcible entries at common law. Under the statute of New-York against forcible entry, the party aggrieved has restitution and damages; and hence it is necessary that the indictment should state the interest of the prosecutor. The People v. Shaw cited by the defendant’s counsel, and the People v. King, 2 Caines 98. are cases upon the statute of that State. In Rex. v. Bake, Mr. Justice Wilmot remarks ; “ No doubt an “ indictment will lie at common law for a forcible entry though “ they are generally brought on the acts of parliament. On “ the acts of parliament it is necessary to state the nature of the “ estate, because there must be restitution, but they may be “ brought at common law.” In The King v. Wilson, Lord Kenyon says, “ No doubt the offence of forcible entry is indictable “ at common law, though the statutes give other remedies [27] c‘ to the party grieved, restitution and damages; and there-½ fore in an indictment on the statutes, it is necessary to state “ the interest of the prosecutor.” Our statute contains no such provision, and gives no remedy by indictment. It simply provides a process to obtain restitution, leaving the parties, the one to his action for damages, the other to his liability to be indicted and punished at common law. With respect to the third objection : it is alleged in the indictment that the house was Calc’s dwelling-house in his actual and exclusive possession and occupation with his family, and that the defendant unlawfully entered, &c. On the whole we think the indictment contains sufficient matter to warrant a judgment upon the verdict which has been found against the defendant; and the motion in arrest is accordingly overruled.