#### STATE *vs.*WILLIAM A. J. POLLOK & WHITE HUMPHRIES.

In an indictment at common law for a forcible entry, it is sufficient to prove that the defendant entered with such force and violence as to exceed a bare trespass.

Where a party, entering on land in possession of another, either by his behavior or speech, gives those, who are in possession, just cause to, fear, that he will do them some bodily harm if they do not give way to him, his entry is esteemed forcible, whether he cause the terror, by carrying with him such an unusual number of attendants or by arming himself in such a manner as plainly to intimate a design to back his pretensions by force, or by actually threatening to kill, maim or beat those, who continue in possession, or by making use of expressions, plainly implying a purpose of using force against those who make resistance.

Appeal from the Superior Court of Law of Onslow County at the Spring Term, 1844, his Honor Judge Manly presiding.

This was an indictment for a forcible trespass at common law. It appeared on the trial, that the land, on which the forcible trespass was alleged to be committed, had been in dispute between the prosecutor, Watson, and the father of the defendant for some years ; that their lands adjoined each other; that it was finally referred to arbitrators to decide between them, and that these arbitrators decided the question in favor of Watson, the prosecutor; that this award was made under an order of Court, and before it was returned to Court, the alleged trespass took place ; that the order for the arbitration was made at March Term, 1841, of Onslow Superior Court and the award made at the following Spring Term, to wit, 1842, when it was confirmed. It also appeared in evidence that the father of the defendant, Pollok, had possession of the *locus in quo*in 1841, and some years previous, by cultivating *the*pine trees for turpentine; but that, after the award was made and before it was returned to Court or made a judgment thereof, Watson, the prosecutor, with his son and a slave, in the month of March, 1842, the *306reguío period for beginning the annual work of getting tur-penline, proceeded to cultivate the trees by chopping them, &c., as the defendant’s father had done the year before; that they had continued *to*do so unmolested by *the*defendants or either of them, and were beginning the work of the second week, the son and slave being on the premises, when the two defendants, with five or six negro men, also went on the ground, and the slaves were ordered by Pollok to go to chipping. Watson forbade the slaves, upon which a dispute arose as to their respect ive rights to the land; in the course of which the defendant Pollok, stated that he knew the arbitrators had given the land to Watson, but that he intended to keep it, and would work the trees at the risk of his lift*. He further stated, that if Watson would chip the trees, he would dip them. After some further angry words, the defendant, Pollok, advanced upon Watson, rolling up his sleeves, and saying, he would whip him and his father too, when the defendant Humphrey interposed and told Pollok not to fight, It further appeared, that the defendants, Pollok and Humphrey, were both informed of the fact, that Watson’s hands were on the land, working the trees, and they had some conversation relative to the propriety of arming themselves, before they should go there. Watson and his slave went off and abandoned the land to Pollok, who has continued to work the trees since. The slave left while the dispute was going on and Watson soon after.

The defendant’s counsel contended that Watson, the prosecutor, neyer had such a possession of the premises, as could be violated by a forcible entry, because, 1st, his interference was for too short a time; 2dly, it was an unlawful possession ; 3dly, the possession had not been yielded up to Watson, the prosecutor ; 4thly, that, supposing the possession in Watson *to*be complete, *there was no*evidence, that he had been forcibly entered upon or ejepted; that there should be some actual breach of the peace.

The Court charged the jury, that before the defendants or gíther of them could be legally convicted, under the indict*307ment, the jury should be satisfied upon two points; 1st, that the prosecutor, Watson, had by himself or his servants the actual possession of the premises in dispute; 2dly, that the defendants entered upon him and put him out -by force. In respect to the first point, the jury were instructed, that it was not necessary this actual possession should be continued for any length of time; it was sufficient if the possession had been discontinued by Pollok, and there was an actual entry lipón and occupation by Watson of the premises in the manner described. Nor was it necessary that this possession should be a *lawful*one, in any other sense than that it should be peaceably enjoyed by Watson. Nor was it believed to be essential that Pollok should have yielded up his possession, provided the jury should find it was put an end to in any way. The true question was, not who had the *best right*to possess, but who had the actual possession —the *possessio peáis*of the law, Upon the second point the Court informed the jury, that it was not always easy to define the precise degree of force necessary to constitute a forcible trespass. It was believed, however, to be unnecessary to go to the extent of shewing an actual personal vio - lence. If there was such a shew of force, as’ to create a reasonable apprehension in the minds of the adversary party, that they must 3Úeld in order to avoid a breach of the peace, and they did yield without proceeding to that extremity, it would nevertheless be a yielding upon force; such a force as would constitute it a forcible trespass. But if he yielded, not in consequence of such necessity, but because of an apprehension, that he might not be able to gather the result of his work, or such a contest would be unprofitable or vexatious, or for any reason other than the apprehension above designated, the defendants would not be guilty of the force necessary to give their acts a criminal character, and they should be acquitted. The jury were told they might acquit one or both, according to the view they might take of the testimo^ ny. There was no question as to whether the occupation of land, by working the turpentine trees thereon, be a pos*308session. It was conceded on both sides that it was.

The jury found the defendant Pollok guilty and Humphrey not guilty — And, judgment having been rendered a-gajnst PqUoJj according to the verdict, he appealed to the Supreme Court.

*Attorney General*for the State.

*John 12. Bryan & James W. Bryan*for the defendant.

Daniel, J.

This is an indictment at common law for a forcible entry. First, the defendant contended, that the prosecutor never had such a possession of the *locus in quo,*as could be violated by a forcible entry. The defendant’s father (under whom we must *take it he*acted) wa's in the year 1841 in the quiet possession of this land, and cultivated the pine trees thereon in extracting turpentine from them. A dispute as to the title or boundary of this land having arisen between the prosecutor and the defendant’s father, they submitted it by rule of Court to arbitration. The arbitrators awarded the land to the prosecutor, but, before the award was returned into Court, to wit, in the month of March, 1842, the usual period for the beginning of the annual work of getting turpentine, the prosecutor, with his hands, entered on the said land and proceeded to cultivate the trees by chipping, &c. as the defendant’s father had done before. The prosecutor and his hands had continued to do so, for a week, unmolested, and were beginning the work of the second week, with another white man and six slaves, when the defendant came with force and expelled them. The defendant at the time said, that he knew the arbitrators had given the land to the prosecutor, but that he intended to *keep the*land and would work the tre.es at the risk of his life. The Court charged the jury, that, if Pollok’s possession had been put an end to in any way, and the prosecutor had actually entered upon and occupied the premises in the manner described, it was a sufficient possession for the purpose of this indictment ; and that it was not necessary the prosecutor should *309shew, that his possession was held under *title*in any other sense, than that it was peaceably held and enjoyed by him, at the time the forcible act was done by the defendant. We do not see any error in this charge. At common law, it is sufficient to prove that the prosecutor was possessed of the land, and that the defendant entered with such force and violence, as to exceed a bare trespass. *Wilson's*case, 8 Term Rep. 357. Rep. on Evid. 374.

*Secondly,*the Court charged the jury, that personal violence was not necessary to constitute the offence; that, if there was such a shew of force, as to create a reasonable apprehension in the adversary that he must yield to avoid a breach of the peace, and he does so yield, it would be a yielding upon force, and such as would constitute it a forcible trespass. We do not see any error in this part of the charge of his HoNok. The defendant contended, that the offence was not complete, until- some actual breach of the peace had been committed. But the law is, where the party, either by his behaviour or speech, at the time of his entry, gives those, who are in possession, just cause to fear, that he will do them some bodily harm, if they do not give way to him, his entry is esteemed forcible; whether he cause the terror, by taking with him such an unusual number of servants, or by arming himself in such a manner as plainly to indicate a design to back his pretensions by force, or by actually threatening to kill, maim or beat those who continue in possession, or by making use of expressions, which plainly imply a purpose of using force against those who make resistance. Haw. P. C. b. 1, ch. 64, sec. 27. Roscoe on Evid. 377.

Per Curiam, Ordered that this opinion be certified to the Superior Court of Onslow, that it may proceed to judgment accordingly.