#### THE STATE *vs.*WILLIAM S. PRIDGEN.

Whore A. had possession of a tenement, consisting of a main building and a shed attached, and looked the door of the shed in which he had some tools, i?-c., and, leaving a tenant in possession, went away intending to return ; and afterwards the tenant admitted B. into the peaceable possession of the main building. *Held,*that B. was not indictable for a forcible entry in breaking into the shed and assuming possession of that.

When the main body of the house ceased to be, in law, the dwelling house of of A. each room lost that character.

The case of *The State*v. *Curtis,*4 Dev. & Bat. 222, cited and approved.

Appeal from the Superior Court of Law of New Hanover County, at the Fall Term, 1847, his Honor Judge Caldwell presiding.

This is an indictment at common law, for a forcible entry into the dwelling house of one Kitchen.

The house was situated on a tract of land, which had belonged to one Herring, who contracted to sell it to Kitchen, and covenanted to convey in fee upon the payment of the purchase money ; and he let him into possession. After Kitchen had been in possession about three months, a difference arose between him and Herring, about their bargain ; and the latter then conveyed to the defendant, Pridgen. The dwelling-house contained several rooms in it; and there was attached to it a shed, one end of which was open, and used as a piazza, and at the other end there was a room, in which Kitchen kept a trunk, some tools and other articles. He hired a man, named Caudle, and his wife, to work and cook for him ; and they lived in the dwelling house with Kitchen. On a particular day. Kitchen being about to leave home, locked the door of the shed-room, and took the key. He íhen went away, leaving Caudle and his wife in the house, *85and directing them not to let any one in. After he had gone, the defendant came to the house with Caudle and another person to take possession of it; and the defendant was let in by Caudle, and took possession without objection from Caudle. After he had thus taken possession, he asked where Kitchen’s property was, and was told by Caudle that it was in the shed-room ; and the defendant then broke open the door of that room, and with the assistance of Caudle removed the things out of the room. ' -

The Court instructed the jury, that, if Caudle was left in possession of the main body of the house, and had let the defendant into it, the defendant was not guilty on that part of the case ; but that, if Kitchen had put his property in the shed-room, and locked it, and carried away the key, then the breaking open the door of that room, and taking out Kitchen’s property, made the defendant guilty of a forcible entry on that part of the case. The defendant, being convicted, appealed.

*Attorney General,*for the State, referred to

*JRex*v. *Wilson,*8 T. Rep. 357. *Leonard’s Case*11 Johns. Rep. 504. *Rickett’s Case,*8 Cowen 226. *State*v. *Polloh, 4*Ired 303. 1 *Hawkins, Ch. 28, Sec.*26. *State*v. *Fort, 4*D. & B. 192. *State*v. *Armjield,*5 Ired. 207. *State*v. *Toliver, 5*Ired. 452. 1 *Russ, on Crimes,*287.

*Strange,*for the defendant, argued — that the defendant was entitled to a new trial.

1. Because having title to the premies and the indictment being at common law, he was guilty of no offence. 1 *Hawk. P. C. Ch.*28, head, Forcible Entry and Detainer, *Sec.*1, 5. *McDougald*v. *Sitcher,*1 Johns. Rep.j42 — that the defendant had a right of entry, 1 *John.*42, *lit supra*and *Walton*v. *File,*1 Dev. & Bat, 567.

*86*2.*Because either he did not enter the dwelling-house of Kitchen as charged, or he entered peaceably. The shed-room could not be considered the separate dwelling of Kitchen. 1 *Iiawldns P. C. Ch.*17, *Sec.*32, 33. But if it was, no person being therein, the entry was not forcible. 1 *John. Rep.*42, *ut supra. State,*v. *Bennett,*4 Dev. & Bat. 48. If it was not, then the entry into the main building being by and with the consent of Caudle, the tenant, and otherwise peaceable, no subsequent force could make him indictable. *State*v. *Johnson*& *Rose,*1 Dev. & Bat. 324.

RüfpiN, C. J.

The Court is not, upon this appeal of the defendant, called on to speak of the position first laid down to the jury. Perhaps its con’ectness might be found to depend much upon some enquiries of fact, to be passed on by the jury, as to a dishonest concert of Caudle with the defendant to surrender to him his employer’s possession. It is the other part of the instruction, on which the verdict was founded, that is now before us. It does not seem to the Court to be correct; and on that ground, without considering any other point, made at the trial, we think the verdict must beset aside.

That part of the instruction, taken in connection with the evidence, and with the previous part of the charge, assumes, that in fact and law, the defendant had peaceably and justifiably entered the house, and was peaceably possessed of all that part of it, which is called the main body. That being so, the defendant, we think, was not guilty of an indictable trespass in breaking into the other room. That room had never been severed from the other parts of the house, so as to make it a several tenement, and give it a distinct character, as the dwelling-house of Kitchen. The whole was but one dwelling-house ; and it was the dwelling-house of Kitchen exclusively, for Caudle had no possession of his own, but was *87there merely as a servant. *State*v. *Burtis,*4 Dev. and Bat. 222. When the defendant had gained peaceable admission into the house, and claiming as owner, and having in fact the title, had taken actual and peaceable possession of the whole, except the one room, we think that room, though locked, cannot be treated as a distinct tenement, and as the dwelling-house, separately, of Kitchen, to which the new possession did not extend. Under such circumstances it seems clear, that it could not be laid as his dwelling-house in an indictment for burglary by a third person. When the main body of the house ceased to be. in law, the dwelling house of Kitchen, each room lost that character. The whole was but one tenement; and when the defendant took the possession, that of Kitchen ceased throughout, and the defendant was not guilty of successive forcible entries, as, from one room, he entered into another.

Per Curiam. *Venire de novo*ordered.