#### STATE *vs.*JAMES SMITH.

An indictment for a forcible entry into th *& field*of the prosecutor, cannot be supported by evidence that the defendant peaceably entered the field, but while there threw stones against thehonse of the prosecu-tor, situated adjoining the field, the prosecutor at the time being in the house, and not in the field.

This was an appeal from the judgment of his Honor Judge Bailey, at the Fall Term, 1841, of Rowan Superior Court, upon a-special verdict found' by the jury on the trial of an indictment against the defendant for a forcible entry. The indictment was in the following words, to wit:

North Carolina, *)*Superior Court of Law,

Rowan County. *\ sS*Fall Term, 1841.

The jurors for the Stater upon their oath, present that James Smilh, late of the said county, laborer, on the 25th day of August, in the year aforesaid, in the county aforesaid, into-one field then and there being in the seisin and possession of Nancy Lyerly, with force and arms and with a strong hand did break and enter, she, the said Nancy,, then and there being present and forbidding the same, to the great injury of the said Nancy, and against the peace and dignity of the State.

H. C. JONES, *Sol.*

The defendant having plead not guiliy, the jury found the following special verdict, viz. that the prosecutrix (Nancy Lyerly) was'in the possession of her dwelling house, to-, gether with a field adjoining the same which was enclosed— that she had shut up her house and gone to bed — that the defendant, after she had retired, entered into the field and threw stones against her house — that one broke the sash of her window and a pane of glass — that this frightened the prosecutrix, and was done against her will and consent.— *128And whether this amounts to a forcible entry into the “field’’ of the prosecutrix, they pray the advice of the Court. If it does, they find the defendant guilty; if not, they find him not guilty.

rpj^g 0ourtj Up0n argument, did not consider that this a-*mouhtéd*to a forcible entry into the field of the prosecutrix, and gave judgment for the defendant, from which judgment the Solicitor for the State appealed to the Supreme Court.

*J. G. Bynum,*Solicitor for the State,

cited *State*v Fort, 4 Dev. &• Bat. 192. Arch. C. P. 565. *State*v *Bennett,*4 Dev. & Bat. 43. Hawk. P. C. book 1, c. 64, s. 30.

*Boy den*for the defendant,

cited Hawk. P. C. book 1, c. 64, s. 20 to 25. 4 Black. 148. Bac. Ab. For. En. & Det. letter E, and the authorities tírele cited.

Daniel, J.

We are of the opinion that the judgment of the Court below was right. The defendant is only charged in the indictment with a forcibie entry into the *field*of the prosecutrix, she then and there being present. The Jury find that the field, which the defendant entered, was enclosed, and adjoining to the dwelling-house, and that the prose-cutrix was not in the field at the time. These being the facts, he was not guilty in manner and form as charged in the indictment. It is true that the defendant was guilty of an indictable trespass, but that was not the trespass he was charged with, and against which he came to defend himself. A charge of a forcible trespass into a *field,*the owner then and there being present, cannot be supported by evidence' that the defendant entered the field peaceably, and from thence threw stones against a dwelling-house adjoining, the • owner being therein. The two cases are very different, and the defendant might be entrapped, if we were to hold that such facts would support the charge in the indictment. The judgment must be affirmed.

Per Curiam. Judgment affirmed.