#### The Stat*e v*. Pender Weeks & William Biggs,

From Edgecomb.

In a criminal prosecution, there being no dispute as to ownership, title papers are evidence to explain the motives of a party’s conduct.

Hence, where land is sold and the vendee puts a tenant at sufferance out cf possession, in an indictment for an assault in this putting out, the deed under which the vendee claims, is evidence.

Whether evidence of title can be received to decide the fact of possession between adverse occupants. Q,u ?

Tifo Defendants were indicted for an assault and battery; On the trial the prosecutor proved that he had'kept a school for three weeks, in a house on the land of one *Cely*Weeks, and that he had her permission to use it, as long as he pleased, if he prevented the boys from hurting the orchard. That a few days before the assault and battery complained of, the Defendant *Weeks*had read to him a deed from *Cely Weeks,*for the land on which the school-house stood, and had ordered him off. He also proved that he left the house on a Friday evening, secured as usual, with the design of returning on Monday and resuming his business j that when he returned, be fouiuHhe Defendants in the house, who had removed all his property out of it, and told him he must not enter, this he disregarded, and pushing one of them aside, went in, upon which the Defendants took him up and *136carried him out of the door. The Defendants offered in evidence, a deed from' *Cely Weeks,*whereby the land on which the house stood, was conveyed to the Defendant *jYccks,*and which was executed after the permission given to the prosecutor, but before the day when the prosecutor was notified to quit — this evidence was objected to by the State, and refused by the Court. The Defendants then proved, that before the alleged assault, they entered the house peaceably, put out the property of the prosecutor, and W'ere alone in the house, when the prosecutor returned.

His honor Judge Mangum, instructed the Jury that the question of title was wholly immaterial, that if they believed that the prosecutor had such possession of the house, as is usually held in school-houses, on the Friday evening before the alleged assault, and had left it,with an intent to return on Monday, that in law, the prosecutor was in possession when the Defendants entered, and they had no right to prevent him by force, from going into the house, or to remove him therefrom after he had entered.

The Jury having returned a verdict for the State, a rule for a new trial being discharged, and judgment ren - dered for- the State, the Defendants appealed.

The case was submitted by the *Mtorney-General*for the State, and *Gaston*for the Defendants.

Henderson, Judge.

This case does not involve the question, whether title can be resorted to when there are adverse occupants to decide the fact of possession. The *fact*of possession between *Cely Weeks*and the prosecutor, being before the Jury, the deed was offered to show that the same state of facts existed between one of the Defendants and the prosecutor. It was not offered to show that title was in the Defendant, and not in the prosecutor, but to communicate to the Defendant the possession of *Cely Weeks,*if she had one, to substitute him *137for her as to that fact, and for no other purpose. I think that the evidence should have beeu received.

Haul, Judge.

It appears from the testimony of the prosecutor, that he had the consent of the owner of the land, to use the house as long as he pleased. There was no contract for that purpose, guarding her orchard from the inroads of the boys, made *none;*either party might alter their mind when they pleased, lie might have left the house without any breach of contract, and the owner had the right of requesting him to do so, and enforcing the request by any lawful means. It appears that the Defendant *Weeks*purchased the house of the owner, notice of this was given to the prosecutor, he persisted in re-taking possession of it, after the Defendants had become possessed, and here I suppose that the assault and battery charged, was committed. It does not appear that the Defendants acted otherwise than to take up the prosecutor and put him out of doors, and as one of .them owned the house, and the other acted by his authority, they had a right under the circumstances of the case to do so, if they used no unnecessary violence *;*but to. shew this right in them, I think the deed from. *Celt/ Weeks*to *Fender Weeks,*ought to have been read in evidence. As it was not, a new trial must be granted.

J Ü.O GHENT REVERSED.