Bladen County NcArchives Court.....Wiley Fort & Samuel Gause, State V. 1838
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Alton Parnell APARNELL@nc.rr.com June 4, 2008, 6:25 pm

Source: NC Reports
Written: 1838

The State v. Wiley Fort and Samuel Gause

Indictment - Forcible Trespass

1. An indictment for any forcible trespass upon a dwelling house - short of a 
   violent taking or withholding of the possession of it - must charge that the 
   proprietor was in the house, or actually present at the time.
2. In an indictment for a forcible entry into a dwelling house, it is not 
   necessary to charge or to show that a proprietor was in the house, or present 
   at the time of the violent dispossession.

The Defendants were indicted at Bladen, on the last circuit, before his Honor 
Judge Pearson, in the following words: 

"The jurors for the State, upon their oath, present that Wiley Fort and Samuel 
Gause, late of Bladen, on, &c., with force and arms and with strong hand, in 
said county, the window of the dwelling house of one Griffith J. Streety there 
situate, did break open against the peace and dignity of the State."

A motion was made to quash the indictment, because it did not allege that the 
proprietor was in the house, or actually present at the time, so as to show 
that the act had a tendency to a breach of the peace. The Solicitor contended 
that breaking a dwelling house with strong hand was indictable at common law, 
whether the owner was present or not, because the law held dwelling houses to 
be sacred, and extended a peculiar protection to them. His Honor sustained the 
motion and quashed the indictment, and the Solicitor for the State appealed.

Gaston, J. We are of opinion that the Superior Court did not err in quashing 
the indictment.

The law certainly has a great respect for the immunities of a man's dwelling, 
but the law has not deemed it necessary for their protection to hold every 
direct injury to it an offence against the public. Many of these injuries are 
properly redressed as private wrongs, by actions at the instance of the person 
injured. The violent taking or withholding of the possession of a man's house 
is indeed regarded as a public offence; and in an indictment for a forcible 
entry or detainer, the term manu forti, or with strong hand, being one used in 
statues descriptive of the offence, is technically appropriate to designate 
the violence which is thus visited. In an indictment for a forcible entry it 
is not necessary to charge or to show that the proprietor was in the house, or 
present, at the time of the violent dispossession. But we find no authority 
for the position that a mere trespass upon the dwelling house, short of a 
violent taking or withholding of the possession thereof, is per se an offence 
against the community. If committed under such circumstances as necessarily 
involve a breach of the public peace, or have an immediate tendency to provoke 
it, then the act may rise from a private to a public wrong. But when 
prosecuted as a public wrong, the indictment must show it to be such, and 
therefore must charge the circumstances which give to it this character. The 
epithet "with strong hand" cannot apply the want of the essential constituents 
of the offence. As connected with the mere trespass, it has no technical 
meaning, and amounts to no more than is expressed by the words force and arms. 
It does not imply the presence of the proprietor or of any of his family - nor 
that the act created, or had a tendency to create, terror or indignation - and 
therefore does not charge an actual breach, or such conduct as is tantamount 
to an actual breach of the public peace. The judgment is affirmed.
Per curiam.                            Judgment Affirmed

Source: NC Reports
        Vol. 20
        June Term 1838
        December Term 1839

Additional information:

There was a Wiley Fort born about 1810 in Bladen and was in Cumberland in 1860 
and was shown as farm overseer on farm of Jonathon Evans.
 
There was a Samuel Gause born about 1818 in Bladen and was in New Hanover in 
1870 as merchant and had 5 slaves.
 
There was a Griffin J. Streety born abt 1812 and was in Jefferson, FL in the 
1860 census. His father may have been G. J. Streety who was a Bladen taxpayer 
in 1790's.


File at: http://files.usgwarchives.net/nc/bladen/court/wileyfor512gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 4.7 Kb