Opinion
August Term, 1849.
1. The offense of forcible trespass must be charged as being done with a strong hand, "manu forti," which implies greater force than is expressed by the words "vi et armis."
2. To constitute the offense there must be a demonstration of force, as with weapons or a multitude of people, so as to involve a breach of the peace, or directly tend to it, and be calculated to intimidate or put in fear.
APPEAL from the Superior Court of Law of YANCEY, at Spring Term, 1849, Bailey, J., presiding.
The defendant was indicted for a forcible trespass in seizing and, with a strong hand, taking out of the possession of one David Byrd a certain promissory note, then in the lawful possession of the said David Byrd. The jury found a special verdict, as follows: That the defendant had executed a promissory note for $100, payable to William Ray, and by him endorsed to Samuel Fleming; that Samuel Fleming placed that note in the hands of a constable for collection; that the constable served a warrant on the defendant and cited him to appear before David Byrd, a justice of the peace for Yancey County; that the note was delivered to David Byrd, the magistrate, and was in his possession when the defendant asked him to let him look at it; that David Byrd handed the warrant, with the note inclosed in it, to the defendant; that the defendant shook the note out of the warrant and slipped it into his pocket; that Byrd immediately requested the defendant to return the note to him; that the defendant refused to return the note, saying he (40) did not have it; that the said note was obtained from the said Byrd by the defendant through stratagem and fraud, to prevent the said Byrd from getting judgment against him upon the said note. And the jury refer the question to the court, whether in law the defendant is guilty or not guilty.
The court was of opinion with the defendant and gave judgment for him, from which judgment the solicitor for the State appealed.
Attorney-General for the State.
J. W. Woodfin for defendant.
We concur with his Honor below, that the defendant is not guilty of forcible trespass. That offense must be charged as being done with a strong hand, "manu forti," which implies greater force than is expressed by the words "vi et armis." There must be a demonstration of force, as with weapons, or a multitude of people, so as to involve a breach of the peace or directly tend to it and be calculated to intimidate or put in fear. S. v. Flowers, 5 N.C. 254; S. v. Fisher, 12 N.C. 357; S. v. Mills, 13 N.C. 420. The jury find that the defendant obtained the note from Byrd by stratagem and "fraud." This resembles larceny more than forcible trespass.
The Court thinks there should be judgment for the defendant.
PER CURIAM. Ordered to be certified accordingly.
Cited: S. v. Covington, 70 N.C. 74; Coates v. Wilkes, 94 N.C. 178; S. v. Hawkins, 125 N.C. 691.
(41)