Commonwealth v. Brown , 138 Pa. 447 ( 1891 )

OPINION,

Mr. Justice McCollum; :

The substance of the charge contained in the indictment in this case is that the appellant “ with force and arms ” unlawfully holds and beeps the possession of a certain store-room in the southern half of his building on Pennsylvania avenue, in the borough of Greensburg, while the possession of that room of right belongs to one Lizzie Ohr, who has leased it from him. It was regarded in the court below as a good indictment for the statutory offence of forcible detainer, and upon it the appellant was tried, convicted, and sentenced to pay a fine of twenty-five dollars and the costs of prosecution, and to make restitution of the lands and tenements detained.

In the information on which the warrant for the arrest of the appellant was issued, the prosecutrix did not allege that she had any interest in or claim upon the store-room, and it is not charged in the indictment that she had possession of it at any time. It is true that the latter avers that she leased the room from the appellant, but when, and whether for life, for years, on condition, or at will, does not appear. We learn, however, from the statement of the learned judge in his opinion overruling the motion in arrest of judgment, that she was to have possession of the room under a lease on the first of April, and that a few days prior thereto the appellant allowed her to make some measurements therein, preparatory to contemplated repairs, but that when she brought the workmen and materials there he refused her admittance. The opinion does not inform us whether this refusal was before, on, or after April 1st.

While this brief reference to extrinsic matters is not essential to a decision of the question whether the indictment is sufficient to support the conviction, it serves to show the real nature of the controversy, and the importance of adherence to forms in criminal procedure. For augbt that appears in the indictment or the opinion of the court, the appellant is under sentence for the crime of forcible detainer, when the main ingredients of the offence are wanting. A prior possession of the premises by the prosecutrix, and an unlawful detention of them by the appellant “ by force and with a strong hand, or by menaces or threats,” were necessary to a lawful conviction, and should have been charged in the indictment: 2 Whart. on Crim. Law, 7th ed., §§ 2042, 2048; 2 Archb. Crim. Pr. & PL, 8th ed., 1181; § 22, act of March 31,1860, P. L. 390. Greater force must be averred than is expressed by “ vi et armis.” The words “and with a strong hand” should never be omitted: Whart. on Crim. Law, § 2047. These words mean something more than a common trespass. They imply that the entry was accompanied with that terror and violence which constitute the offence: Commonwealth v. Shattuck, 4 Cush. 141. The same description and degree of force is necessary to constitnte a forcible detainer as a forcible entry: 1 Whart. on Prec. Ind., 490, and notes.

The indictment under consideration does not authorize an award of restitution, because there is no sufficient averment in it that the prosecutrix has an estate either of freehold or leasehold in the premises : Burd v. Commonwealth, 6 S. & B,. 252. It is fatally defective in form and substance, and the judgment entered upon it cannot be sustained. A prosecution for forci ble detainer is not an appropriate remedy for the breach of an agreement to give possession of lands and tenements.

The judgment is reversed, and the defendant is discharged.