The defendant and Daniel Bordeaux were not on friendly terms. The defendant came to the dwelling house of Daniel Bordeaux in a wagon or carriage, with a shot gun in the carriage, and a five barrel revolver about his person, each barrel being loaded. He left his carriage at the gate, with the gun in it, and as he proceeded to the house he met J. W. Wagstaff, who went with defendant into the house. The door, at which they first entered, opened into the sitting room: Daniel, the proprietor of the house, was at home, but had gone into an adjoining room where his family were, when the defendant entered. The defendant was much intoxicated, and said he would kill or be killed — that he had as lief [life] die as live. He took hold of Wagstaff and pushed him as far as the front door: Wagstaff then pushed defendant out of the door and fastened it. Daniel Bordeaux, about this time, came into the sitting room; and opening the front door a little, to look after the defendant, the latter violently pushed the door back against him and entered the room a second time, he (Daniel) opposing his entrance. As to this part of the case, Daniel Bordeaux, the witness, stated he had not forbidden the defendant to enter, nor made any objections to it; but he would have done so, if he had not been a relation of his own and of his wife: still, he said, he had entered the house with force and against his will.
After getting near the fire place, on this second entry, Daniel seized a piece of wood and was in the act of striking, when the defendant put his hand on his pistol: Wagstaff caught his arm, at that moment, and took the pistol and a knife from him without any difficulty.
Daniel then laid aside the piece of wood which he had in his hand, and fell upon the defendant with his fists and beat *Page 243 him quite severely. The defendant then went off threatening to return with a double barrelled gun.
The witness, Wagstaff, after describing the facts as above stated, gave it as his opinion, on a cross examination, that the second entry of the defendant was peaceable.
The Court charged the jury that if, at the time he entered the room a second time, the defendant supposed that he had the consent of the owner to enter, (as he had not forbidden his entry before, nor had he ordered him out of his house,) and pushed the door back with force, as he entered, although it struck against the person of the owner, he would not be guilty of a forcible trespass: but if he went there with an evil design, for the purpose of doing mischief, knowing at the time he entered, or having good reason to believe, that his entry would be against the will of the owner, and pushed the door open by force and violence, and this was done against the will of the owner, he would be guilty, although the owner did not forbid his entry. Exception by defendant. Verdict of guilty Judgment. Appeal to Supreme Court. The testimony given on the trial, fully justified the charge of his Honor to the jury, and we can discover nothing in it, of which the defendant has a right to complain. The unfriendly feelings which had previously existed between him and the owner of the house, his rude behavior when he first entered, to say nothing of his being armed with deadly weapons, and the violent manner in which he entered the second time, clearly made out a case of forcible trespass. It was not necessary that the owner should, in words, have forbidden the entry, if his acts were sufficient, as we think they were, to indicate to the defendant that his entry was resisted. The opinion of the witness, Wagstaff, expressed upon his cross examination, that pushing open a door and rushing into a house, was a peaceable entry, cannot alter the law upon the subject. *Page 244
The question, whether the entry, in the manner in which it was made, was against the will of the owner, was left to the jury as favorably for the defendant as the law allowed, and he must abide their verdict. The case is quite as strong as that of the State v. Toliver, 5 Ire. Rep. 452, which was held to be a forcible trespass.
There is no error in the record, and this will be certified as the law directs, to the end that the superior court of the county of New Hanover may proceed to pronounce judgment upon the defendant.
PER CURIAM. Judgment affirmed.