THE STATE vs. AMOS L. RAY & AL.
The offence of forcible trespass must be charged as being done with ft strong hand, “ manu fortij’. which implies greater force than is expressed by tha words ‘ vi.et armis
To constitute the offence, there must be a demonstration of force, as with weapons or a multitude of people, so as to involve a breach of the peace, or directly teud to it, and be' calculated to intimidate or put in fear.
The cases of the State v. Flowers, 1 Mur. 254, State v. Fisher, 1 Dev. 357 and Slate v. , 2 Dev. 420, cited and approved.
Appeal from the Superior Court of Law of Yancy County, at the Spring Term 1849, his Honor Judge Baile*presiding.
The defendant was indicted for a forcible trespass in seizing, and, with a strong hand, taking out of the possession of one David Byrd a certain promissory note, then in the lawful possession of the said David Byrd. The jury found a special verdict, as follows: that the defendant.had executed a promissory note for one hundred dollars, payable to William Ray, and by him indorsed to Samuel Fleming : that Samuel Fleming placed that note in the'hands of a constable for collection : that the constable served a warrant on the defendant and cited him to appear before David Byrd, a justice of the peace for Yancy County: that the note was delivered to David Byrd» the magistrate, and was in hjs possession, when the defendant asked him to let him look at it — that Jbtvid Byrd handed the warrant, with the note ipeiosed in it, to the defendant — that, the defendant shook the note out of the warrant, and slipped it into his pocket- — that Byrd immediately requested the defendant to return the note to him *40—that the defendant refused to return the note, saying he did not have it — that the said note was obtained from the said Byrd by the defendant through stratagem and fraud, to prevent the said Byrd from giving judgment against him upon the said note. And the jury refer the question to the Court, whether in law, the defendant is guilty or not guilty.
The Court was of opinion with the defendant and gave judgment for him, from which judgment the Solicitor for the State appealed.
Attorney General, for the State.
J. W. Wood-fin for the defendant.
Pearson, J.
Wf concur with his Honor, below, that the defendant is not guilty of forcible trespass. That of-fence must be charged, as being done with a strong hand, “ manuforti,” which implies greater force than is expressed by the words “ vi et armis.” There must be a demon stration of force, as with weapons, or a multitude of people, so as to involve a breach of the peace, or directly tend to it, and be calculated to intimidate or put in fear. State v. Flowers, 1 Mur. 254. State v. Fisher, 1 Dev. 357. State v. Mills, 2 Dev. 420. The jury find, that the defend ant obtained the note from Byrd by stratagem and “fraud.” This resembles larceny more than forcible trespass.
. The Court thinks there should be judgment for the defendant.
Per Curiam.
Ordered to be certified accordingly.