State v. Gibson

Seawell, J.

The appeal of defendants poses the question whether the evidence was sufficient to go to the jury upon either of the offenses of which they were found guilty, and as to either of defendants. However, there was sufficient evidence that they acted in concert throughout the transactions culminating in the indictments, and the cases may be discussed without distinction as to their participation.

The Court is of the opinion that the evidence on the charge of attempted burglary is not sufficient to be submitted to the jury. The judgment overruling the demurrer to the evidence and declining the motion for judgment as of nonsuit is therefore, as to that charge, reversed.

The evidence relating to the charge of forcible trespass was properly submitted to the jury. The objection of the appellants seems to be that the proof of the offense fell short of the accepted definitional standards in that the defendants were not ordered from the premises, or, at least, that the occupants or owner did not exhibit that ordinary firmness in resisting the aggression, which, unavailing, might give rise to an inference of force.

Forcible trespass, using the term as the equivalent of forcible entry under the statute, does not at all times, and under all circumstances, require the vocal protests of the owner of the invaded premises to get into tbé category of punishable offenses. The manner and purpose of the invasion, the show of force, conduct calculated to intimidate the owner or lead to a breach of the peace, and the knowledge on the part of the aggressor, however acquired, that the invasion is against the will of the owner, are circumstances to be considered. G. S., 14-126; S. v. Oxendine, 187 N. C., 658, 122 S. E., 568; S. v. Fleming, 194 N. C., 42, 138 S. E., 342; S. v. Tyndall, 192 N. C., 559, 135 S. E., 451; S. v. Earp, 196 N. C., 164, 145 S. E., 23; S. v. Davenport, 156 N. C., 596, 72 S. E., 7; S. v. Pollok, 26 N. C., 305; S. v. Jacobs, 94 N. C., 950.

There does not seem to be any other reasonable conclusion than that the conduct of the defendants from the moment they entered the premises until they finally left was of such a lawless and intimidating character as to put the occupants of the premises, and especially the owner, Mrs. Marshall, in a state of extreme fear, and to make the ordinary means of resisting trespass unavailable.

On the charge of forcible trespass and as to each defendant, the order overruling the demurrer to the evidence was proper, and we find no error. On the charge of attempt to commit burglary,

Error and reversed.

On the charge of forcible trespass,

No error.