Dildy v. State

Kirby, J., (after stating the facts). Appellant was not charged with the violation of a statute, nor with any offense at all, unless the indictment charges an offense under the common law. “If a trespass does not injure, or threaten to injure the public to such an extent that public policy requires the State to interfere, it is a mere private wrong and not a crime. * * * A trespass that constitutes a breach of the public peace and order, or that threatens a breach of the public peace and order, is a crime at common law. Thus, it is a misdemeanor at common law to commit a trespass on real property, if it is committed under such circumstances as to constitute or cause a breach of the peace.” 1 Clark & Marshall’s Law of Crimes, 45. Bishop says: “A man is indictable for a forcible entry or trespass, who by a strong hand, awakening fear, wrests from another’s peaceable possession either personal or real property, even though he is acting under a just claim.” And in another section: “The mere trespass is not in these cases indictable; the act must go further. Yet the excited terror which will complete it may be wrought as well by a display of numbers as by other means.” 1 Bishop’s New Criminal Law, § § 536, 538. In State v. Covington, 70 N. C. 73, the court said: “This court has repeatedly held that, to constitute the offense of forcible trespass, there must be a demonstration of force, as with weapons or multitude of people, so as to make a breach of the peace, or directly tend to it, or be calculated to intimidate or put in fear. State v. Ray, 10 Ired. 39; State v. Ross, 4 Jones 315; State v. McCanless, 9 Ired. 377. It is essential to the offense that there should be a demonstration of force, which is perhaps the best definition of the term ‘manu forti’ and its equivalent, ‘with strong hand.’” This demonstration of force is to be distinguished from bare words, which, however violent, can not of themselves constitute the force necessary to complete the offense. Words, accompanied by a display of weapons, or other signs of force, may constitute the offense, or words accompanied by numbers may be sufficient; but in either case there must be some outward act as distinguished from bare words,' which are often only the exhibition of harmless passion, and do not, by themselves, constitute a breach of the peace. To complete the offense, there must not only be a demonstration of force, but it must be also such as is calculated to intimidate or put in fear.” State v. Lloyd, 85 N. C. 573; State v. Laney, 87 N. C. 535. Thus it appears that, in order to constitute a criminal or forcible trespass, there must be an actual demonstration of force, as with arms or numerous attendants. Here the alleged trespass was not charged to have been committed forcibly or with stong hand, etc., and the evidence does not tend to show that it was committed by more than one man, and was unaccompanied by violence, hostile demonstration, threats, or any show of force, and amounted, at most, to but an ordinary civil trespass. The indictment is insufficient, and does not charge a public offense, and the motion in arrest of judgment should have been sustained. Kirby’s Digest, § 2427; State v. Leathers, 31 Ark. 44; Rex v. Starr, 3 Burrow 1700; Rex v. Bake, Ib. 1732. Neither was there sufficient testimony to support the verdict, if an offense had been properly charged. For these errors, the judgment is reversed, and the eause dismissed.