#### THE STATE vs. WILLIAM W. McCAULESS AND AUGUSTUS MARTIN.

The gist Cf the offence of forcible trespass is a high handed invasion of the possession of another, *he héiñg preéerik—*title is not drawn in question.

If two are in the same house, the law adjudges the possession in him, who has title ; but not so, as, by relation back, to make the other guilty of a forcible trespass, when the entry was without -forces

Where there are two counts in an indictment, onfe good and the other defective, and there is a general verdict against the defendants, the judgment Will be presumed to have been given Upon the good count alone. But When both counts are good and the Court gives erroneous instructions to the jury as to one of the counts, it is presumed that the judgment was given upon both counts, and a *venire de novo*will be awarded.

Appeal from the Superior Court of Law of Surry County, at the Spring Term 1849, his Honor Judge Enins presiding.

The indictment contains two counts ; one, for a forcible trespass into the house of the prosecutor; the other for an assault aftd *battery**

*In*March 1847, the prosecutor let the house and field to one Mitchell to make a crop. Mitchell transferred his interest in the premises to Mrs. Mitchell,his mother, who took possession and lived in the house until November 1847, when she let the premises to the defendant Mc-Canless, for the balance of the year.

The prosecutor, on the night before the alleged trespass, went to the house, while Mrs. Mitchell was still living in it, and entered, but without force, and slept there on a bed, which he carried there for the purpose. In the morning, being the 1st day of November, he went off, announcing his intention to go and *get other*household property and bring it to the house. While he was gone, the *376defendants came and entered with the permission of Mrs» Mitcheii. The prosecutor returned and came into the house. In a short time his sons arrived with his house» hold property, and were in the act of bringing it into the house, when the defendants objected, and tried to prevent it by shutting the door. This was opposed by the prosecutor, and a fight ensued between the prosecutor and the defendants.

His Honor instructed the jury, that Mitchell', and those claiming under him, were not entitled to the premises for 'the entire year, but only up to the usual time for making and gathering a crop, and, if that time had expired when the prosecutor entered, his entry was lawful, and the de* fendants, according to the evidence, were guilty of a forcible trespass, notwithstanding they had entered the house, while the prosecutor was absent, with the permission of Mrs. Mitchell, and claiming under her.

The defendants were found guilty on both counts. Motion for a new trial was refused ; judgment for the •State, and the defendants appealed.

*■Attorney General,*for the State.

No counsel for the defendants.

Pearson, J.

The gist of the offence of forcible trespass is a high handed invasion of the actual possession of another, *he being present*— title is not drawn in question. According to the evidence in this case, Mrs Mitchell Was, on the morning of the first of November, in possession of the house. The defendants entered with her permission tod acquired the possession from her, in the absence of the prosecutor, and, although he came afterwards and entered into the house, and the defendants there opposed his bringing in his household goods, it did not make them guilty of a forcible trespass. • It may be they wer® guilty of a forcible detainer»

*377If two are in the same house,' the law adjudges the possession in him, who has title ; but not so, as, by relation back, to make the other guilty of a forcible trespass, when the entry was without force.

We think his Honor erred in the instructions given.

It is insisted, that the defendants, being properly convicted upon the second count, that will sustain the judgment, notwithstanding the error in the'charge in reference-to the hirst count. It is true, when one count in an indictment is defective, and another count is good, and there is a general verdict, a motion in arrest cannot be sustained ; for, the good count warrants the judgment, and, although the punishment is *discretionary,*the judgment is presumed to have been given upon the good count.

In this case, both counts are good. There was error in the instruction given on one of the counts, by reason whereof the defendants were improperly convicted upon that count, and are entitled to a *venire de novo ;*for, as his Honor thought the conviction was proper on both counts, and both counts are good, we must presume, that the amount of the fine imposed was fixed on, in reference to both counts ; whereas, if the defendants had been acquitted upon the first count, as they should have been in our opinion, the punishment would have been imposed, in reference to the last count only, which was much the-less aggravated offence. Indeed, the attention of the Court and jury seems to have been directed exclusively to the first count; and the Court believing, that, according to the evidence, the defendants were guilty upon that count, it made no difference how the jury found upon the second count, which was included in the first.

PER CuRIAM, Let there bo a *venire de novo.*