TRESPASS-ENTERING PREMISES WITHOUT FORCE.

TEMPLE v. STATE.

[7 Baxt. 109.]

In the Supreme Court of Tennessee, April Term, 1874.

An Unlawful entry on premises without force is not a criminal trespass.

APPEAL from the Circuit Court of McNairy County.

NICHOLSON, C. J. Temple was indicted in the Circuit Court of McNairy County" for forcibly and unlawfully entering upon the premises of one J. E. Randolph and against his consent, to the evil example of all others, and against the peace and dignity of the State."

A motion was made to quash, because the indictment avers only a civil trespass, and not a criminal offense. The motion was overruled. Upon the trial the proof showed that Temple was engaged in having a survey made of a tract of land adjoining the land of the prosecutor, and continued to have the survey made, although prosecutor objected upon the ground that he was running on his lands. No force was used and no threats of violence resorted to.

The court charged the jury that "the act of the defendant must have been such as the law contemplates would have a tendency to lead to an immediate breach of the peace," further, "the unlawful entering upon the premises of another, and against his consent is such an act as the law regards as having such tendency."

Under this charge the jury found the defendant guilty, and he was fined ten dollars.

It is laid down in State v. Ross," that to make a trespass indictable, it must be committed manu forti, in a manner which amounts to a breach of the peace; or, according to some of the cases, which would necessarily lead to a breach of the peace if the person in possession is not overawed by a display of force, so as to be induced to surrender and give up the possession, because resistance would be useless. Unless this decree of force is resorted to, the trespass is a mere civil injury to be redressed by action."

The circuit judge laid down the law in substantial conformity with the rule here referred to, but added, that the unlawful entering upon the premises of another, and against his consent, is such an act as the law regards as having a tendency to lead to an immediate breach of the peace. In other words, that the mere unlawful entering upon the prem

1 4 Jones (N. C.) 316.

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ises of another against his consent, is an indictable offense, whether the entry was accompanied with force or violence or threats of intimidation or not.

The definition of the law does away with any distinction between a civil and a criminal trespass. The distinction is well settled, that if the entry is made without force although it may be unlawful it is only a civil trespass, but if accompanied with force amounting to a breach of the peace, or such as is calculated ordinarily to produce a breach of the peace, it is a criminal trespass.

The judge committed the same error in his charge that he did in overruling the motion to quash the indictment. The indictment contains no averment of force, or threats, or violence, but is simply a charge of a civil trespass.

The judgment is reversed and the indictment quashed.

TRESPASS-REMOVING OBSTRUCTIONS.

STATE v. PARROTT.

[71 N. C. 311.]

In the Supreme Court of North Carolina, 1874.

Persons are Guilty of no Offense in tearing down a portion of a railroad bridge over a river, when by so doing they were removing obstructions to the free navigation of that river.

Indictment for a trespass in tearing down a portion of a railroad bridge.

On the trial in the court below, the jury found the following special verdict.

"That the track of the Atlantic and North Carolina Railroad Company which company had been duly incorporated and organized under the laws of North Carolina, crossed the Neuse river a few miles before the town of Kinston, in the county of Lenoir, the said river being there a navigable stream. That at said place of crossing, and as a part of its track, the said company had erected a bridge across said river. That the defendants were owners, officers and employes of a steamboat of thirtyseven tons burden running between the city of Newbern, a port on said river, and the town of Kinston aforesaid. That on the day named in the bill of indictment, the defendant's boat, loaded with goods to be delivered at Kinston, reached the said bridge on her way from Newbern to Kinston, and finding it could not pass further up the stream without

removing a part of the bridge, the defendants did remove a part thereof, thereby injuring and removing a portion of the track and rails as charged in the indictment; that said bridge had no draw in it, although by its charter the said company was required to have a draw in said bridge. That said company had been notified several months before that said boat would be placed on said river for navigation, and had been requested at the same time to place a draw in said bridge. That prior to the day named in the indictment, the said boat had passed the said bridge eight times, the company taking up a span of the bridge each time to enable her to do so; that she was delayed each time several hours; that on the day named in the indictment the said company had no one present to remove the span, and on that occasion the boat was delayed thirty hours.

"That the owner of the boat had license from the proper government officers at Norfolk to run the said boat between Newbern and Kinston; that said railroad was a post road under the laws of the United States; that at the time of the removal of the bridge a number of the employes of the company were standing on the bridge, forbidding its removal near the defendants, who were standing on the bridge below, two of whom had pistols in their hands, which were not pointed at any one. That the company was then engaged in constructing a draw in said bridge, and would have had the same finished in seven days; that the bridge could have been kept open for defendants' boat during the construction of the draw, but only at a very considerable additional expense.

His honor gave judgment upon the special verdict that the defendants were not guilty, from which judgment the solicitor from the State appealed.

Attorney-General Hargrave, Seymour and Lehman, for the State. Smith & Strong, for defendants.

READE, J. The Neuse, at the place under consideration, is a navigable river. Any obstruction of a navigable river is a common or public nuisance. A common or public nuisance may be abated by any person who is annoyed thereby. The railroad bridge across the Neuse obstructed the navigation thereof by the defendants' steamboat, and for that reason, the defendants tore it down. It follows that the defendants are not guilty. It is not necesary to display the learning and decisions in support of these positions, although we have fully considered them, because they may be found collected in a well considered case in our court, and we think it respectful and sufficient to support our decisions in this case by that.1

1 State v. Dibble, 4 Jones, 107.

It is insisted, however, that while an indivinual can not obstruct a navigable stream, yet a State may do it on the inland streams unless Congress oppose; and here the State did authorize the railroad to build the bridge. It is true the State did authorize the railroad to build a bridge across the Neuse, but it did not authorize the bridge to be so built as to obstruct navigation, but required a draw to be in the bridge so as to permit navigation. This was not done. It is further insisted that the defendants acted wantonly, for that the railroad was preparing a draw, and would have completed it in a few days about seven days. The facts are, that the defendants had given the railroad several months' notice to prepare a draw. Prior to the day in controversy, as often as the defendants' boat passed, the railroad removed a span of the bridge to permit the passage, detaining the boat but a few hours; but on the day in question the span was not removed, and the boat was detained for thirty hours, when the defendants removed a portion of the bridge. From these facts it appears that the obstruction was wanton and its removal necessary. Let this be certified to the end that judgment may be entered discharging the defendants as upon a verdict of not guilty.

In the Supreme Court of North Carolina, June 1838.

Malicious Mischief- Malice Towards Owner Necessary. - Evidence that property was injured or destroyed through mere wantonness, or in sport, and not from a feeling of resentment towards its owner or possessor, is not sufficient to convict the defendant upon an indictment charging this offense.

In lictment for malicious mischief. The court instructed the jury that if the mischief complained of was accomplished through mere sport or wantonness, the defendants were guilty, although they had no malice against the owners of the property. Verdict not guilty. fendants appealed.

Caldwell, for the defendants.

The Attorney-General, for the State.

De

GASTON, J. The distinction between those injuries which are regarded simply as trespasses on the rights of individuals and those which amount to a violation, also, of the duties due to the community, ought to be 2 DEFENCES.

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accurately drawn and carefully observed. We fear that this has not been done in this State, with respect to the wrongs known under the general name of "malicious mischief," and apprehend that this confusion has been the result of treating as common-law offenses acts which owe their existence as crimes wholly to positive statutes. For reasons which have been assigned in the case of State v. Scott,1 it is too late now to question whether an indictment for malicious mischief may not be sustained as for a misdemeanor at common law, but there is difficulty in laying down clearly the necessary constituents of that offense. It is obvious that if "malicious" be understood in its legal sense of intending wrong, and "mischief," mean any harm done to another's property, almost every trespasser on property may be made the subject of criminal prosecution. The description of malicious mischief usually given by the writers on criminal law, that is to say "such damage as is done to private property not animo furandi or with an intent of gaining by another's loss, but either out of spirit of wanton cruelty, or black and diabolical revenge," may answer as a general indication of those common-law trespasses which by a multitude of statutes have been raised into crimes, but it is too destitute of precision to constitute a legal definition. What spirit of severity shall be deemed a spirit of cruelty; what degree of cruelty mounts up to a wanton cruelty; and what intensity of revenge is required to render it black and diabolical, may be considerations in the exercise of legislative discretion, but can not be fit subjects of judicial ascertainment, nor furnish of themselves rules of public justice susceptible of steady and uniform application. We can discover no other mode in which we shall at the same time pay becoming deference to the preceding adjudications, and secure to the public that certainty which is indispensable in the administration of criminal justice, than to hold such invasions of private property to be indictable as malicious mischief, which are unquestionably within the limits of those adjudications, and to treat all others as private or civil wrongs, until the Legislature shall think proper to impress upon them a different character. Governed by these views, we extract from the adjudged cases as a rule of decision, that malicious mischief, to be indictable, consists in the willful destruction of some article of personal property from actual ill will or resentment towards its owner or possessor.2

It is the opinion of this court that there was in error in the charge of the judge below, and that the judgment rendered against the defendants be reversed, and a new trial ordered.

BY COURT.

1 2 Dev. & B. 35.

Judgment reversed.

2 State v. Landreth, 2 Law Rep. 446, State v. Simpson, 2 Hawks. 460.