The indictment contains two counts: one for a forcible trespass into the house of the prosecutor; the other for an assault and 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 McCauless 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 1 *Page 259 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 defendants came and entered with the permission of Mrs. Mitchell. The prosecutor returned and came into the house. In a short time his sons arrived with his (376) household 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 defendants, 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. The gist of the offense 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 1 November, in possession of the house. The defendants entered with her permission and 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 were guilty of a forcible detainer.
If two are in the same house, the law adjudges the (377) 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 first count. It is true, when one count in an indictment is defective and *Page 260 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 offense. 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 be a venire de novo.
Cited: S. v. Ward, 46 N.C. 293; S. v. Caldwell, 47 N.C. 470; S. v.Hester, ib., 87; S. v. Morgan, 60 N.C. 245; S. v. Beatty, 61 N.C. 53;S. v. Baker, 63 N.C. 281; S. v. Hanks, 66 N.C. 614; S. v. Covington,70 N.C. 74; S. v. Laney, 87 N.C. 537; S. v. Smiley, 101 N.C. 711; S. v.Webster, 121 N.C. 586; S. v. Leary, 136 N.C. 578.
Overruled (in part): S. v. Toole, 106 N.C. 641.
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