#### STATE v. M. E. CONDER, HENRY CONDER and ANDY STARNES.

(Decided March 13, 1900.)

Forcible Trespass — Two Gownis, Personalty and Realty— Possession.

Forcible trespass is an offense against the possession — its tendency is towards a breach of the peace — even a lawful right of possession must be enforced in a lawful manner, and not with circumstances of violence and intimidation, in the presence of the party in actual possession.

INDICTMENT for forcible trespass in removing the horses of prosecutor, J. W. Houston, from the stable in his possession, and taking possession of the stable, with force and arms and ■a strong hand, he being personally present and forbidding, tried before Goble, J., at Spring Term, 1899, of UNION Superior Court.

The defendants pleaded not guilty. The evidence was conflicting in its character. The charge of his Honor was directed to the different phases of the case, as the jury should And the facts. Exceptions were taken by defendants. There was a verdict of guilty. From the judgment rendered defendants appealed. The opinion presents a full view of the case.

Messrs. Armfield & Williams, for appellants.

Mr. Alexander Btronach, with the Attorney-General, for the State:

Douglas, J.

This is a conviction for forcible trespass. There was conflicting evidence, but the following facts sufficiently appear from the evidence for the State which was *986apparently accepted by the jury. The prosecuting witness, John W. Houston, had rented from one Bivens, the premises in question, a livery stable, for the year ending December 8, 1898, and was in undisputed possession. He again rented for the year 1899. On January 4, 1899, Bivens came to him and said that E. J. Heath owned one-third interest in the stable, and wanted the premises. Houston claimed to have rented, and declined to surrender. Heath telephoned that his stock was on the road, and the defendant Oonder came to the stable on January 4, 1899, with Heath’s stock. Defendant Mark Oonder said he had come 1» stay a few days. Witness took his horses, put them up and fed them, after which the defendant Henry Oonder bought feed for the stock; but the witness had the stock attended to until Monday afterwards when Henry Oonder claimed possession of the stable. The witness told Henry Oonder that he (witness) had not given him possession, and on Tuesday the witness put Oonder’s stock on the outside and locked the door. Witness’s brother had had the key. Witness went to breakfast and was gone about twenty-five minutes, and when he returned the stable had been broken open, and Oonder’s horses put back. Witness called his hands in, and defendants would not let. them come in. Witness’s brother ran off a boy. Witness told the defendants he had the stables rented, and w;as going to hold them, and he demanded possession. Don’t think the witness said anything that day to defendants about getting out. Witness demanded possession again on Wednesday, but did not put them out because he thought that he .would have a. fight with them .On Wednesday morning the stables were locked. Starnes was locked up in the stables. Witness again demanded the stables, and they refused, and said they would not open until the thing was settled.

The defendants subsequently put out of the stables all the *987prosecutor’s stock and other property. The defendant introduced evidence tending to show that the prosecutor turned over to them the possession of the premises, and subsequently acknowledged their possession by Words and acts. This testimony raised an issue of fact for the jury. The prosecutor was admittedly in possession when the defendants first put their stock in the stable, and the jury were justified in assuming that he remained in possession if they saw fit to believe his testimony. If he admitted the defendants simply as a matter of favor because they had nowhere else to go-, and upon their assurance that they came to stay only a few days, he did not surrender possession, and was justified in putting out the defendant’s stock peaceably and without violence upon their claim of possession, which amounted to a denial of his own possession. This Court has repeatedly held that forcible trespass is an offense against the possession. State v. Fender, 125 N. C., 649. The gravamen of the offense is that.it tends to a breach of the peace, and hence there must be some actual violence or such an exhibition of force as would be calculated to intimidate a man of ordinary firmness. The law recognizes the fact that some men of more than ordinary firmness are prompt to meet- force with force, which would lead to a breach of the peace with perhaps the most serious if not fatal consequences. Hence it says that even if a man has- a lawful right of possession, he must enforce it in a lawful manner. The prosecutor testified that the defendants broke the lock and took possession of the stables while he was at breakfast, a temporary absence of very short duration., and afterwards retained possession and ordered off his hands in spite of his repeated demands for possession. They subsequently put out all his stock and other property, and retained sole possession of the premises. Tt is true the prosecutor was not present when the defendants broke into the stable, but he wais only *988temporarily absent, and we think that the breaking of the lock in connection with their subsequent conduct justified a verdict of guilty. The defendants seek to justify their conduct also on the ground that they were originally admitted into peaceable possession; but if, as claimed by the prosecutor, they were admitted as a matter of favor under the false assurance that they would remain only a few days, and then sought to retain the qualified possession thus obtained, through artifice to the exclusion of the prosecutor, they would thus make themselves trespassers ab initio■. The nature of the offense of forcible trespass and the application of its essential principles have been recently so repeatedly considered by this Court that it is unnecessary to further discuss this matter. State v. Woodward, 119 N. C., 836; State v. Childs, Ibid, 858; State v. Webster, 121 N. C., 586; State v. Newbury, 122 N. C., 1077; State v. Robbins, 123 N. C., 730; State v. Lawson, Ibid, 740; State v. Fender, supra. There were various exceptions to bis Honor’s charge, and refusal to charge, but we see no error in either, as we think that defendants’ contentions were fairly presented to the jury. The judgment is

Affirmed.