Opinion
December Term, 1822.
An officer cannot break open an outer door or window to execute civil process; and if the door be partly closed by those within, who are resisting the entrance of the officer, and be not entirely shut, the officer is guilty of a trespass should he oppose them with force, and thereby gain an entrance.
INDICTMENT for a forcible trespass in breaking and entering the dwelling-house of one William Patterson, the case presenting the following facts:
J. Martin for appellant.
The Attorney- General in reply.
The defendant Wright was a constable, and had in his hands writs of fi. fa. against the property of William Patterson at the suit of the other defendant, Armfield. Wright, accompanied by Armfield, went towards the house of Patterson for the purpose of making a levy, when a member of the family of Patterson, seeing their approach, jumped into the house, and, for the purpose of preventing the entrance of the defendants, attempted to shut the outer door and while in the act of shutting it, but before it was entirely closed, the defendant Wright pushed against the door and entered the house. The door was so far closed that it could not have been opened without the exercise of some force. The other defendant, Armfield, was present.
The court below instructed the jury that if the defendant Wright forced the door in the manner represented, notwithstanding he came as an officer to execute civil process, he was a trespasser, and if (247) the other defendant was present, aiding, abetting, and assisting, he also was guilty. The jury found the defendants guilty in manner and form as charged in the bill of indictment. A rule was obtained to show cause why a new trial should not be granted, which upon argument was discharged by the court, and judgment was rendered against the defendants, from which judgment the defendant Armfield appealed.
I am of opinion that the charge of the court was correct in this case and that the defendant was property convicted. The law is clearly settled that an officer cannot justify the breaking open an outward door or window in order to execute process in a civil suit; if he both, he is a trespasser. A man's house is deemed his castle for safety and repose to himself and family, but the protection thus afforded would be imperfect and illusive if a man were deprived of the right of shutting his own door when he sees an officer approaching to execute civil process. If the officer cannot enter peaceably before the door is shut he ought not to attempt it, for this unavoidably endangers a breach of the peace and is as much a violation of the owner's right as if he had broken the door at first.
The case cited for the defendant from 5th Coke's Reports only shows that the privilege of a man's house is confined to the occupier or any of his family who have their domicile there, and shall not protect any person who flies thither, nor the goods of any person conveyed there to prevent any lawful execution or to escape the ordinary process of the law. There the owner shut the door to protect the goods of (248) a stranger after the officer had shown his process and offered to execute the same, and after he had given notice of the cause of his coming and requested to have the doors opened. And certainly shutting the door could not lessen the right which the officer had if he had found it shut on his arrival. The judgment must be affirmed.
BY THE COURT: No error.
Cited: Sutton v. Allison, 47 N.C. 341; S. v. Whitaker, 107 N.C. 804.