#### STATE v. ROBERT G. WARD.

In an indictment for forcible entry and detainer at Common Law, if the ver-diet is a general one, and the evidence fails to support either brant h of the charge, there must be a venike de novo.

Whether an indictment will lie at Common Law, for a forcible detainer, where . the entry was peaceable: Qveee?

This was an indictment for a Forcible Entry and Detainer, tried before his Honor Judge Ellis, at the Spring Term, 1854, of the Onslow Superior Court.

The evidence on behalf of the State was, that the locus in quo was a small uninhabited .island, lying between Brown’s Sound and the Ocean, mostly a barren sand-beach, and principally fit for fishing. There was a sparse grove of live oak upon it, and some pasture land, suitable for grazing stock. There had been an old established fishing beach upon it. The lower side of the island was entirely unfit for agricultural purposes. *291The prosecutor bad gone upon tbe island three or four years before the entry complained of, and rented out the fishing beach for three successive seasons, which was known to the defendant. He had also erected a house, where the fishermen resided during the tima. referrefiL^Q;-!- had occasionally cut live oak on the premises- whereyeryig-pfe^:d;-.and had generally, kept hogs upon the landy'ybúlí^'jA^itiinerúfíttlíe-alleged trespass,, had removed them temporarilyiw -The::pio'secutor ■ exhibited a grant for the premises to onevEféemán,': (which was received without objection,) dated May, 1846. The prosecutor lived upon the main land, about one mile from the island. . Oh' the occasion in question, he saw a number of persons approach the island with boats, and, going over immediately, he found the defendant and eighteen others with nets and other fishing apparatus on the beach: they said they intended to fish there; the prosecutor forbade their doing so, when they replied that if James Ward would give them a bond of indemnity, they would fish at all hazards ; and that he had gone to prepare one. Finding that they persisted in their resolution to fish in defiance of him, he return- ; ed to his place of abode. ' A few days afterwards, prosecutor returned to the island, and again ordered the party to leave, to which they replied that James Ward had given them a bond of indemnity, and that they intended to remain at all hazards. Prosecutor stated to them he would bring a jury and dispossess them, to which one of them in the presence of the others replied, that their number was greater than the jury, and if he brought them there, they would expel the jury and prosecutor with force. He then left them, and they remained and continued to fish the remainder of the fishing season. It was proved, by a witness for the defendant, that James Ward had landed on the island in the morning, but had gone off to prepare a bond, and did not return until the prosecutor had left. The defendant, through his counsel, contended that the prosecutor had no actual possession of the island at the time of the entry; but that the same was in the possession *292of James "Ward; that no person being present-forbidding-the entry, the same was peaceable. ■■ • . L-

The Court charged the jury' “thatthey must-be satisfied that the prosecutor had the actual possession of the premises in question, to sustain the charge: contained in the bill, and that if his ■•evidence was true,, as to the character of the premises, the uses of which they were 'susceptible, and to which- he had applied them, he had an actual .gpssejssion, though he was. not; upon the island at the time of :th#eñtr$íN (‘..That, notwithstanding the entry:of James Ward " before theLefhers, early on the morning, and before" the arrival .of the -prosecutor bn the" afternoon, if the prosecutor" was deterred- ffom -mainfaihing..Ms possession"when be" did arrive," by the. threats of the ¡ defendant - and his- associates, and their numbers- arrayedt against"'" him, -. and; - their ' demeanor upon the occasion produced-them.onviction- in- the mind of-the prosecutor, and satisfied the jury, that any efforts to retain-the possession would -have proved unavailing, and on this account he relinquished it, this would be such a forcible .withholding" the possession as would- make the defendant guilty of the forcible detainer charged in the bill.” . .

- The jury found the defendant guilty.. Rule for a; venire tie novo. Rule discharged and judgment, and appeal .to this Court.

Attorney Gf-eneral, for the ’State.

I. II. Bryan, for the defendant.

Nash, C. J.

The indictment-"-is at common law, and is Tor a forcible entry and detainer. The verdict is a general one- of guilty. If the evidence fails to support either branch of the charge, there must be a venire de novo. We think the evidence does not support the charge of a forcible entry. ;-Everyfbrcible entry necessarily implies a breach of the peace, an indictable trespass. Both these parties, the prosecutor and the defendant, Ward, claim title to the locus in quo, which was an uninhabited island, neither being in the actual possession. The prosecutor *293bad been in the habit of using the island as a fishing ground, and for pasturing his cattle. At the time the defendant and his party entered, no person was'.on it but themselves, and after being there some time, the prosecutor went over and ordered them off. They refused to go, and announced their determination to retain-possession by force, if necessary. This..was- certainly sufficient evidence to support the charge of forcible detainer, if it be indictable at common law. Does it show a forcible-entry ? We think not. The defendant entered peaceably, committed no indictable trespass; and when one .makes a peaceable and lawful entry into land, no one being in the actual possession-, -he has a right to maintain that possession with force, if necessary; and the rightful owner has no right to take possession by force, but must resort to his ejectment,- or seek redress under the act against forcible entries and detainers. State v. Johnston, 1 Dev. and Rat. 325. Every forcible entry necessarily, as before stated, embraces a forcible trespass. Was there any such trespass here ? In the case State v. Walker, 10 Ired. 234, the Court decide, to make a forcible trespass indictable, some person must be in the house or on the premises. In Johnson’s case, the same doctrine is held as to the peaceable entry of the defendant. In the State v. McCauless, 9th Ire. 377, the Court say, “ the gist of a forcible trespass is a high-handed invasion of the actual possession of another, he being present.” Here the entry of the defendants was a peaceable one. His detainer was forcible and indictable, but cannot relate back to the entry. The verdict is a general one, finding the defendant guilty both of the forcible trespass, and the forcible detainer: and his Honor charged the jury, if they believed the evidence, the defendant was guilty of the forcible detainer. In this there is no error. The indictment here is to be considered -as if it contained two counts — one for a forcible entry, and'detainer,'and the other, for a forcible detainer. When that is the case, and one of the counts is good and the other bad, a .general verdict will be sustained, as having been given on the good count. But, *294where both counts are good, and the evidence supports but one, and there has been a general verdict of guilty, it is manifest that the verdict cannot stand, for the judge cannot know on which count to punish the defendant. For this error there must be a venire' de'-novo.'

On the trial it was objected, that an indictment for a forcible detainer could not be sustained at common law. The question is not without its difficulties; and though we now give no opin- . ion on the question, we very strongly doubt if it can. The ■ doubt has several times been expressed in this Court. ■ • In Johnson’s case, ubi supra, p. 326, the Court say: “ If an indictment w31 lie .at common law for a forcible detainer, after a peaceable entry,” &c. But we refrain from going into the subject, as it is not necessary to a decision of the present question.

Judgment reversed and a venire de novo. :