The action being one of forcible entry and detainer by the appellee against the appellant, the latter demurred to the second count of the complaint, that the defendant “ entered on said lands peaceably, and by force of threats detains the same,” because it did not state a sufficient ground for the proceedings.
The statute uses the words “ by force or threats, turning or keeping the party out of possession.” A forcible detainer is “where one who enters peaceably, afterwards detains his possession by force.” — 1 Russ on Crimes, 310 ; Bishop’s Crim. Law, 477. Keeping a party out of possession, and detaining possession, by force, describe too nearly the same wrong to make the latter liable to a demurrer.
The action of the court in the charge given, and in its refusal of the one asked by the defendant, is objected to on the supposition that the jury was instructed not to regard actual occupation of the premises at the time of the entry of the defendant necessary to the support of the action. Our interpretation of the instructions is, that to constitute actual occupation, it was not necessary for the plaintiff himself to be on the land, or to be residing on it, at the time the defendant entered, but that habitual and continuous acts of ownership, showing a disposition to control it, which were open, notorious and demonstrative, his adverse intention would be sufficient.
We cannot say there was error in this charge, in view of the testimony concerning this land, that it was situated between two rivers and subject to overflow and not capable of habitation. Such lands would not admit of other occupation than that exercised by the plaintiff.
Threats of bodily harm to the former possessor, if he dare return, though no attempt be made to re-enter, con*428stitute a forcible detainer. — Bishop’s Orixn. Law, § 486. These threats need not be made directly to the other party. It would be sufficient in a proceeding to keep the peace that others had heard the threats; and the character of the party making them would be a legitimate subject of inquiry to show the probability of his carrying them into execution. In this case, the fact to be ascertained was that the plaintiff was put under a reasonable fear of harm. For this purpose the testimony was admissible.
Note bx Reporter. — At a subsequent day of the term, appellant applied for a re-hearing. The application did not come into Reporter’s hands. The following response was made by—The proof of the absence of the witness Doyle beyond the jurisdiction of the State, was sufficient to authorize the admission of his deposition used at a former trial. Long v. Davis, 18 Ala. 801; Holman v. Bank of Norfolk, 12 Ala. 408.
The judgment is affirmed.
B. F. SAFFOLD.The appellant’s construction of the charge of the court, that actual possession was held not to be necessary to sustain the action, is not admissible. The charge contains such expressions as “if Dubroca attempted to stand upon his possession, (if the jury find that Dubroca was really in possession);” and “ if Dubroca was in possession of a part of said land, claiming the whole,” &e.
The re-hearing is denied.