Opinion
(June Term, 1852.)
1. A forcible detainer is not indictable where the entry was peaceable and lawful.
2. From the finding of the jury that the defendant "unlawfully and with a strong hand detained," it cannot be implied that the entry was also unlawful.
APPEAL from Caldwell, J., at Spring Term, 1852, of ROCKINGHAM.
Attorney-General for the State.
Gilmer and Miller for defendants.
Defendant was indicted for a forcible entry and detainer at common law. The jury found him not guilty of the forcible entry, but guilty of the forcible detainer, as charged.
(349) The judgment was arrested, and the solicitor for the State appealed.
The Attorney-General admitted, under the authority of S. v. Johnson, 18 N.C. 324, that a forcible detainer was not indictable at common law when the entry was peaceable and lawful; but he insisted that it was indictable when the entry was unlawful, although it was made in a peaceable manner.
The question intended to be made is not presented. The jury have not found that the entry was unlawful, and there is nothing from which it can be implied. It is said that it should be implied from the finding that he "unlawfully and with a strong hand detained." Non constant, for it may be that the defendant entered as a tenant at will, or for years, or per auter vie, and unlawfully detained and refused to give up possession after the expiration of his estate. Such unlawful detainer was clearly not an indictable offense at common law, because the entry was both peaceable and lawful, and the reversioner, if he cannot enter peaceably, is put to his action.
PER CURIAM. Affirmed.
(350)