Opinion
(June Term, 1864.)
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 an indictable trespass, and the taking may be averred to be from the possession of the prosecutor.
INDICTMENT against three persons for a forcible trespass in taking and carrying away the plaintiff's corn, tried before Osborne, J., at Spring Term, 1864, of DAVIE.
(239) The indictment charged "that William F. Miller, of, etc., was lawfully possessed of a certain quantity of corn, etc., and Green Drake, N. H. C. Williams, and Samuel Howard, with force and arms and strong hand, etc., did seize and take from the actual possession of the said William F. Miller, he being present and for bidding the same, by his son and agent, William H. Miller, the aforesaid 20 bushels of corn, and did then and there unlawfully, forcibly, violently, and with strong hand retain possession of the said 20 bushels of corn, etc." The jury found a special verdict as follows: "The prosecutor had gathered his corn, and put it into a crib on his plantation, and locked the crib and left home. In his absence the defendants broke open the crib and carried away a part of the corn. W. H. Miller, a son of the prosecutor, was present and forbade the entry and the removal of the corn. Whether the defendants be guilty as charged, the jury are not advised. If the court should be of opinion that the defendants are guilty, the jury find them guilty. If the court should be of opinion that the defendants are not guilty, the jury find them not guilty." The court being of opinion with the defendants, a verdict of not guilty was entered, and judgment accordingly, and the State appealed.
Winston, Sr., for the State.
No Counsel for defendant.
The judgment of the Superior Court upon the special verdict is erroneous. In the absence of the father, the son had authority to forbid the entry into the crib, and the entry with strong hand, under such circumstances, is more than a civil trespass. The force is sufficiently manifest from the number of persons engaged, and from the violence committed on the building.
(240) It is not necessary the owner should be present always in his house to forbid the entry of a trespasser, in order to continue it under the protection of the law against this offense. A member of the family left in charge, forbidding, will have the same effect.
The possession of the son is the possession of the father, and it is, therefore, properly laid as a trespass to the latter's possession. Upon the whole, we conclude the offense is well laid, and the facts found in a special verdict constitute a case of guilt.
This should be certified to the Superior Court of Davie County, that the judgment may be reversed and judgment for the State awarded.