Summary
In S. v. Fisher, 12 N.C. 504, it was held that the number of actors (three) by whom the prosecutor was overawed and prevented from resisting made their acts an indictable trespass; and that the civility with which they apparently demeaned themselves, while in truth they intended at all events to take by force, if necessary, the property from the possessor, would not diminish their guilt, since acts of extreme violence, as robberies and burglaries, are often committed under civil appearances or fraudulent pretenses.
Summary of this case from State v. ArmfieldOpinion
June Term, 1828.
From Bladen.
If three persons commit a trespass upon property in the presence of the person in possession, their number makes it indictable, although actual force is not used.
THE defendants were indicted for that they "with force and arms, and with strong hand, in, etc., into a certain cornfield, there, etc., in the peaceable possession of one Sarah McDaniel, did enter, and one bushel of corn, then and there with force and arms and with strong hand, from the possession of the said S. M. did take and carry away."
No counsel for defendants.
Devereux, in place of Attorney-General, for the State.
On the trial the case was that the prosecutrix, Sarah McDaniel, and her sister, were gathering the corn, when the defendants, with two other persons, entered the field with a cart, and demanded of the prosecutrix a portion of the crop, which was refused by her, whereupon they began to gather the standing corn, and take that which had been gathered by the prosecutrix, and although forbidden by her, carried it all away.
His Honor, Judge Norwood, informed the jury that if three or more persons go together to commit a trespass, and do commit it, the number constitutes the force, and renders the trespass indictable; and that if the person in legal possession (505) is present and forbids the trespassers from proceeding, which is disregarded and the trespass committed, this renders it indictable.
The defendants were convicted, and appealed.
The indictment charges the offense sufficiently if the facts will warrant the inference of law that the act amounted to a trespass; for the words "with strong hand" import something criminal in its nature, something more than is meant by the words vi et armis, which are the mere formal words in an action of trespass. The others constitute a sufficient allegation of an actual force used, amounting to a breach of the peace, more especially when it is charged to have been committed by two persons. The inquiry, therefore, is whether the facts proved according to the case sent up, amount to an indictable trespass. In Regina v. Soley it is said by Lord Holt that "as to what act will make a riot or trespass, such act as will make a trespass will make a riot," by which he must be understood to mean, if committed by three or more persons. 11 Mod., 116. The converse of the proposition must be true, that a trespass committed by three or more persons will make a riot. In every trespass, as well as riot, there must be some circumstances, either of an actual force or violence, or at least of an apparent tendency thereto, as are apt to strike a terror into the people; but it is not necessary that personal violence should have been committed. Clifford v. Brandon, 2 Campbell, 369. Any resistance on the part of the prosecutrix must have led to an actual breach of the peace; but the resistance of two women to the four persons who came to take the (506) corn must have been unavailing. They came there to take it, and would have used the necessary force if their numbers had not terrified the owner into submission. It is no answer to the indictment, therefore, that they quietly gathered the corn and put it into the cart, for acts of extreme violence, as robbery, are sometimes committed under a very civil appearance. I think this was more than a civil injury, and for the reason given by the judge who tried the cause, I am of opinion that the judgment should be affirmed.
PER CURIAM. Judgment affirmed.