Opinion
(December Term, 1847.)
1. Where A had possession of a tenement, consisting of a main building and a shed attached, and locked the door of the shed in which he had some tools, etc., and, leaving a tenant in possession, went away, intending to return; and afterwards the tenant admitted B into the peaceable possession of the main building: Held, that B was not indictable for a forcible entry in breaking into the shed and assuming possession of that.
2. When the main body of the house ceased to be, in law, the dwelling-house of A, each room lost that character.
APPEAL from the Superior Court of Law of NEW HANOVER, at Fall Term, 1847, Caldwell, J., presiding.
Attorney-General for the State.
Strange for defendant.
This is an indictment at common law for a forcible entry into the dwelling-house of one Kitchin.
The house was situated on a tract of land which had belonged to one Herring, who contracted to sell it to Kitchin, and covenanted to convey in fee upon the payment of the purchase money; and he let him into possession. After Kitchin had been in possession about three months a difference arose between him and Herring about their bargain, and the latter then conveyed to the defendant, Pridgen. The dwelling-house contained several rooms in it, and there was attached to it a shed, one end of which was open and used as a piazza, and at the other end there was a room in which Kitchin kept a trunk, some tools and other articles. He hired a man named Caudle and his wife to work and cook for him, and they lived in the dwelling-house with Kitchin. On a particular day Kitchin, being about to leave home, locked the door of the shed-room and took the key. He then went away, leaving Caudle and his wife in the (85) house, and directing them not to let any one in. After he had gone the defendant came to the house with Caudle and another person to take possession of it, and the defendant was let in by Caudle and took possession without objection from Caudle. After he had thus taken possession he asked where Kitchin's property was, and was told by Caudle that it was in the shed-room, and the defendant then broke open the door of that room, and, with the assistance of Caudle, removed the things out of the room.
The court instructed the jury that if Caudle was left in possession of the main body of the house, and had let the defendant into it, the defendant was not guilty on that part of the case; but that if Kitchin had put his property in the shed-room, and locked it, and carried away the key, then the breaking open the door of that room and taking out Kitchin's property made the defendant guilty of a forcible entry on that part of the case. The defendant, being convicted, appealed.
The Court is not, upon this appeal of the defendant, called on to speak of the position first laid down to the jury. Perhaps its correctness might be found to depend much upon some inquiries of fact to be passed on by the jury, as to a dishonest concert of Caudle with the defendant to surrender to him his employer's possession. It is the other part of the instruction, on which the verdict was founded, that is now before us. It does not seem to the Court to be correct; and on that ground, without considering any other point made at the trial, we think the verdict must be set aside.
That part of the instruction, taken in connection with the evidence and with the previous part of the charge, assumes that in fact and law the defendant had peaceably and justifiably entered the house, and was peaceably possessed of all that part of it which is called the main body. That being so, the defendant, we think, was not guilty of an indictable trespass in breaking into the other room. That room had never been severed from the other parts of the house so as to make it a several tenement and give it a distinct character as the dwelling-house of Kitchin. The whole was but one dwelling-house and it was the dwelling-house of Kitchin exclusively, for Caudle had no possession of his own, but was there merely as a servant. S. v. Bennett, 20 N.C. 170. When the defendant had (87) gained peaceable admission into the house, and claiming as owner, and having in fact the title, had taken actual and peaceable possession of the whole, except the one room, we think that room, though locked, cannot be treated as a distinct tenement, and as the dwelling-house, separately, of Kitchin, to which the new possession did not extend. Under such circumstances it seems clear that it could not be laid as his dwelling-house in an indictment for burglary by a third person. When the main body of the house ceased to be, in law, the dwelling-house of Kitchin each room lost that character. The whole was but one tenement; and when the defendant took the possession, that of Kitchin ceased throughout, and the defendant was not guilty of successive forcible entries, as from one room he entered into another.
PER CURIAM. Venire de novo ordered.
Cited: Watson v. McEachin, 47 N.C. 211.
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