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I. CHARACTER OF OFFENCE.

of another

lands and

law.

§ 1083. WHEN a man violently takes and keeps possession of any lands and tenements occupied by another, with menaces, force, and arms, and without the authority of law, he may be indicted at common law, for forcible entry and detainer. To enter, Forcible with intent to keep possession, constitutes the offence of exclusion forcible entry. Of this there may be a conviction with- from his out proving a forcible detainer. A forcible detainer is tenements where a party, “having wrongfully entered upon any lenne ali lands or tenements, detains such lands or tenements in common a manner which would render an entry upon them for the purpose of taking possession forcible.” In many of the States, through the substitution of statutory remedies giving the injured party summary relief by recourse to a civil tribunal, criminal procedure in such cases has fallen into disuse.3

$ 1084. The following English statutes have been in several States held to be part of the common law : 5 Ric. II. st. 1, c. 8.

Entry with Strong Hand and Multitude of People. - tion of

“And also the king defendeth, that none from bence- law by forth make any entry into any lands and tenements but statutes. in case where entry is given by the law, and in such case not with strong band, nor with multitude of people, but only in peaceable and easy manner; and if any man from henceforth do to the contrary, and thereof be duly convicted, he shall be punished by imprisonment of his body, and thereof ransomed at the king's will.”

Modifica

common

1 4 Bl. Com. 148; Russ. on Cr. (9th Anthony, 4 Johns. 198, 1809; People Am. ed.) 421; Henderson's Case, 8 v. Van Nostrand, 9 Wend. 50, 1832; Gratt. 708, 1852. See State v. Laney, Lowman v. Sprague, 73 Hun, 408, 87 N. C. 535, 1882. That the aggres- 1893. sor remained in possession is admissi- The statutes of both Pennyslvania ble in evidence to show his purpose and Virginia are simply declaratory in making the entry and that he made of the common law, as modified by 5 his entry effectual, although he is not Ric. II. st. 1, c. 8, and 21 Jac. I. c. 15, charged with forcible detainer. Liss- as will hereafter appear in the adjudiner v. State, 84 Ga. 669, 1890.

cation given to them by the courts. ? Steph. Dig. Crim. Law, art. 79. Com. v. Miller, 42 Leg. Int. 247,

* See Public Statutes of Massachu- 1884. See 2 Pa. L. J. 391, for a setts, c. 175; for cases under this learned article on the law as obtainstatute, see Crock. Notes, c. 175. ing in Pennsylvania. In New York, People v. * By stat. 8 Hen. VI. c. 9, this stat

see

21 Jac. I. c. 15.

Restitution to be Awarded.—That such judges, justices, or justices of the peace, as by reason of any act or acts of parliament now in force are authorized and enabled, upon inquiry, to give restitution of possession unto tenants of any estate of freehold, of their lands or tenements which shall be entered upon with force, or from them with holden by force, shall by reason of this present act have the like and same authority and ability from henceforth, upon indictment of such forcible entries or forcible withholdings before them duly found, to give like restitution of possession unto tenants for term of years, tenants by copy of court-roll, guardians by knight's service, tenants by elegit, statute-merchant and staple, of lands or tenements by them so holden, which shall be entered upon by force, or holden from them by force."

§ 1085. The violent and forcible taking or keeping of another Gist of of

man's property is, apart from the operation of particular fence is the statutes, a breach of the public peace, punishable in a

criminal court by indictment. The gist of the offence is the violence, or threat of violence;' and from the peculiar sanctity attached by the common law to every man's dwelling-house, violence offered to it is distinguished as a substantive offence, and punished with peculiar severity. Forcible entry and detainer, as an indictable offence, continues, therefore, to be punished in the courts even of those States where the injured party is furnished with the most summary civil remedies.? Nor, notwithstanding occasional hesitation, can its continued common law efficiency be disputed. At common law, to support an indictment there must be a breach of the peace. But by the 5 Ric. II. st. 1, c. 8, and 21 Jac. I. c. 15,

violence.

ute is extended to cases where the · State v. Camp, 41 N. J. L. 306, entry was peaceable but the detainer 1879. forcible; and restitution is given in ? R. v. Wilson, 8 T. R. 357 ; Newsuch cases. Rob. Dig. 284. Both ton v. Harland, 1 M. & G. 644; Hardstatutes are in force in Pennsylvania. ing's Case, 1 Greenl. 22, 1820; Com. Van Pool v. Com., 13 Pa. 391, 1850. v. Taylor, 5 Binn. 277, 1812; State But not in New Hampshire. State v. v. Mills, 2 Dev. 420, 1830; State v. Morgan, 59 N. H. 322, 1879.

Speirin, 1 Brev. 119, 1802. By 15 Ric. II. c. 2, there is a sum- 3 Com. v. Toram, 5 Pa. 296, 1846 ; 2 mary power given to justices to con- Pars. 411. vict on view. This as well as the pre- * R. v. Wilson, 8 T. R. 357; R. v. ceding statutes is in force in Pennsyl- Bake, 3 Burr. 1731 ; Com. v. Dudley, vania and Maryland. See Roberts's 10 Mass. 403, 1813; Henderson's Case, Digest; Van Pool v. Com., supra ; 8 Gratt. 708, 1852. Kilty's Report, etc., 227–36.

title.

the common law, as we have seen, received a modification, which, in many of the States, has been considered as a constituent part of the offence.

$ 1086. There is a distinction to be observed between forcible entry, etc., as it existed and still exists at common law, Statutory and forcible entry, etc., under the above-given statutes. offence reIn the first place, more force is necessary to constitute force than the former offence than the latter;- in the second place, law, but in an indictment for the latter offence it is necessary to

either

freehold or set forth either a freehold or a leasehold in the prosecu- leasehold tor, while in the former, an averment of mere possession is sufficient. Keeping these distinctions in mind, the construction given by the courts to the statutory offence will apply with equal force to the offence at common law.

$ 1087. Any one who forcibly puts out and keeps out another from possession may be indicted for forcible entry and

Any person detainer. Hence, as will hereafter be observed, a land- forcibly lord who violently dispossesses a tenant whose lease has putting out expired may be guilty of forcible entry. But where his from posmansion is detained by one having a bare charge, a man may be

indicted. may break open the doors and forcibly enter without violating the statutes. And though this does not bold good when unnecessary force is used, yet, if there be no such force, a person who enters upon land or tenements of his own, but which are in the custody of his servant or bailiff, does not commit the offence of forcible entry.? $ 1088. It seems that though a woman cannot be be so

indicted as mulcted in damages for a trespass on her husband's against her property, she may, “if she comes with a strong hand,” husband.

· Harding's Case, 1 Greenl. 22, been ended by the wrongful entry of 1820; Roberts's Digest, 283.

another, even though such entry was * R. v. Bake, 3 Burr. 1731 ; Com. v. made under claim of a paramount Dudley, 10 Mass. 403, 1852; U. S. v. title, has sufficient possession to mainGriffin, 11 Wash. Law Rep. 642, 1864; tain an action for the forcible detenand cases cited infra, 8% 1100, 1101. tion of his property. Brown v. Fea

3 Harding's Case, 1 Greenl. 22, gins, 37 Nebr. 256, 1893. 1820; State v. Speirin, 1 Brev. 119, 5 See Morris v. Bowles, 1 Dana, 97, 1802. Infra, & 1111.

1833. * See Woodside v. Ridgeway, 126 6 Russ. on Cr. (9th Am. ed.) 421 et Mass. 292, 1879; Newton v. Doyle, 38 seq. Mr. Greaves, in a note, holds Mich. 645, 1878; Campbell v. Coon- this statement of Sir W. Russell to be radt, 22 Kans. 704, 1879; U. S. v, erroneous. See infra, ?1097-1100. Griffin, 11 Wash. Law Rep. 642, 1864. Steph. Dig. Crim. Law, art. 79. One whose complete possession has

Wife may

7

So as to tenant in common

his com

So as to

third per

cer of law.

“under circumstances of violence amounting to a breach of the public peace,” be convicted of a forcible entry. § 1089. A joint tenant, or tenant in common, may offend against

the statutes by forcibly ejecting or holding out his com

panion.? ejecting

Thus, where one of a board of trustees forcibly put

certain persons in possession of a church, which was panion.

closed by order of a majority of the board of trustees, it was held those persons were guilty of a forcible entry and detainer.” § 1090. An indictment will lie against a third person who

forcibly intrudes himself on land, after judgment against

a former intruder, and the sheriff, who holds title under son dispossessing of the writ of restitution, may turn him out of posses

sion. § 1091. As a general rule, an indictment for forcible entry

lies to redress an expulsion from any real estate, Real estate, corporeal

whether corporeal or incorporeal ; and it has been said or incorpo- that the process can be maintained against any one,

whether a terre-tenant or a stranger, who should forcibly protected.

disturb a landlord in the enjoyment of his rent, or a commoner in the use of his common. But a way,' ferry,” or similar easement, is not the subject of this process.

A forcible entry may be made on land, whether woodland or otherwise, within the bounds of a tract possessed by another, although the whole tract be not inclosed by a fence or cultivated.

$ 1092. Distinct from forcible entry and detainer as a statutory To forcibly offence, yet bearing close relations to forcible entry and trespass on detainer at common law, stands forcible trespass on perpersonalty

sonalty, which is “the taking by force the personal property of another in his presence.

It is distinguishable, however, from forcible entry and detainer at common law by two features : (1) The latter must be directed against real interests exclusively, while the forcible trespass on personalty has for its

be thus

8

force is essential.

9

2

1 R. v. Smyth, 5 C. & P. 201; 1 M. et seq. Compare, as qualifying text, & Rob. 155.

authorities cited infra, & 1103. 1 Russ. on Cr. (9th Am. ed.) 425 ; 6 1 Russ. on Cr. (9th Am. ed.) 425. Com. v. Oliver, 2 Pars. 420, 1849. ? Reese v. Lawless, Littell's Cas.

3 Com. v. Oliver, 2 Pars. 420, 1849. (Ky.) 184, 1814.

4 State v. Gilbert, 2 Bay, 355, 8 Pennsylvania v. Robison, Addis. 1802.

14, 1791. 5 1 Russ. on Cr. (9th Am. ed.) 421 . State v. Barefoot, 89 N.C. 565, 1883.

To forcible

object chattels of all classes ; and (2) Forcible entry and detainer at common law does not necessarily involve violence offered a person actually in possession, while such violence to such person is necessary to constitute forcible trespass to personalty as a common law offence. It is virtually but an aggravated assault, though from the peculiar texture of the offence, the word assault need not appear in the indictment.

$ 1093. On an indictment at common law for forcible entry, it is necessary to prove that the defendant entered with such force and violence as to exceed a bare trespass, and to entry force give reasonable grounds for terror;- but where a party trespass is entering on land in possession of another, either by his necessary. behavior or speech, gives those who are in possession just cause to fear that he will do them some bodily harm if they do not give way to him, bis entry is deemed forcible, whether he causes the terror by carrying with him an unusual number of attendants, or by arming himself in such a manner as plainly to intimate a design to back his pretentions by force, or by actually threatening to kill, maim, or beat those who continue in possession, or by making use of expressions plainly implying a purpose of using force against those who make resistance.3

A strong man went to the house of another, in his absence, and remained there against the will of the wife, using insulting language; the husband returned and ordered the intruder out, but he refused to go for some time, and then went into the yard, with a a club in his hand, threatening and cursing. It was held, that this

State v. Mills, 2 Dev. 420, 1830; 22, 1820; Com. v. Taylor, 5 Binn. 277, State v. Phipps, 10 Ired. 17, 1848; 1812; State v. Pollok, 4 Ired. 305, State v. McDowell, 1 Hawks, 449, 1844; State v. Ross, 4 Jones, (N. C.) 1821. See infra, & 1112. State v. 315, 1857. Laney, 87 N. C. 535, 1882. See State 31 Russ. on Cr. (9th Am. ed.) 426 ; v. Porter, 25 W. Va. 685, 1885. Pennsylvania v. Robison, Addis. 14,

* R. v. Smyth, 5 C. & P. 201; R. v. 1791; Resp. v. Devore, 1 Yeates, 501, Deacon, Ry. & M. 27 ; Com. v. Keeper 1795; State v. Pollok, 4 Ired. 305, of Prison, 1 Ashm. 140, 1828; Com. v. 1844; Bennett v. State, 1 Rice Dig. Conway, 1 Brewst. 509, 1868; Com. v. 340; State v. Cargill, 2 Brev. 445, Rees, 2 Ibid. 564, 1869; Thompson v. 1810; State v. Talbot, 97 N. C. 494, Com., 116 Pa. 155, 1887; and cases 1887; Parrott v. Hodgson, 46 Ill. App. cited at close of this note. That any 230, 1891 ; Coverdale v. Curry, 48 Ill. force in a dwelling-house likely to App. 213, 1892; Wells v. Darby, 13 produce terror may constitute the Mont. 504, 1893. Infra, & 1099. offence, see Harding's Case, 1 Greenl.

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