Pike v. Witt , 104 Mass. 595 ( 1870 )

Chapman, C. J.

No fault is found, on either side, with the instructions given to the jury as to what constitutes a forcible entry, but they are conceded to be correct. The only question raised is, whether the evidence, as reported, is sufficient in law to authorize the jury to find the defendants guilty.

The premises consist of one room in a steam saw mill, which was in the occupation of the plaintiff, no person being in it, but it was left locked by a padlock, the plaintiff’s workman being near the mill and in possession of the key The defendants owned the mill, and occupied the remaining part of it. It is admitted that the defendants entered the room, but it is denied that they entered forcibly. We need to consider the acts and language of the defendants separately and in connection with each other, and apply to them the instructions given to the jury-

It appears that the two defendants went to the mill, taking with them a workman. This of itself does not constitute the “multitude” or “unusual number” spoken of in the books, which of itself tends to excite terror. They took with them an axe. But as this is a mechanical tool, rather than a weapon to be used in combat, the mere fact that one of three men carries an axe to a saw mill cannot be supposed to excite terror* There must be something in addition to the number of the men and the possession of the axe, to constitute the force mentioned by the learned judge, and this must consist of menace or act. The bill of exceptions states that there was no violence of language or act towards the plaintiff’s workman who was at tjje mill. The defendants demanded of him the key; he refused to deliver it; and they said no more to him. Thus far, there was no force. They then directed their workman to enter the-room through the floor by means of a hole used for throwing out slabs ; and he entered accordingly. But it is not forcible to enter by drawing a latch or through an open door or window. Bac. Ab. Forcible Entry & Detainer, B. It cannot then be forcible to enter through a hole in the floor. Thus it appears that they directed their servant to enter without force, and he did so. His entry was their entry, and it was completed without force. The removal of a clasp or bolt afterwards, for the purpose of making ingress and egress easy, does not constitute such force as the instructions require to be proved. It amounted merely to mechanical force, applied against the consent of the plaintiff’s agent, but not tending to alarm him or to excite apprehensions of bodily harm, and there is no evidence that he felt any alarm or apprehension. And the case finds that the axe was brought for the purpose of being used in removing the clasp. A majority of the court are of opinion that there is nothing in all these facts tending to prove the force required by the instructions to be proved.

The submission and award offered in evidence by the defendants were oral. They related to the right of the plaintiff under a lease for years of real estate, and could not be valid on that ground. Nor had such a defence been alleged in the answer The evidence was rightly excluded.

But on the ground that there was no evidence upon which the jury could legally find that there was a forcible entry, the

Exceptions are sustained.