Goerndt v. State

240 S.E.2d 711, 144 Ga. App. 93, 1977 Ga. App. LEXIS 2594

• Court: Court of Appeals of Georgia
• Decided: October 7, 1977
• Docket: 54542
• Status: Published

Opinions

Deen, Presiding Judge.

1. The rules of law governing the liability of one who injures another in an attempt to prevent or end a trespass on his property are the same whether the proceedings are civil or criminal in nature. Brown v. Martinez, 361 P2d 152 (3), 100 ALR2d 1012, 1017.

2. "A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into... a habitation.” Code § 26-903. A trailer which is the home of the defendant is a habitation in the same sense, and the right to defend it against a trespasser is the same. Evans v. Hughes, 135 FSupp. 555.

3. As against a tenant in possession, where the right of reentry is not contained in the rental agreement, a landlord has no right to force his way into the rented premises. The public policy of this state provides for summary dispossession of a tenant who is in arrears for rent, and forcible entry without legal process by the landlord against the will of the tenant renders him a mere trespasser. Entelman v. Hagood, 95 Ga. 390 (1) (22 SE 545).

4. The uncontradicted testimony on this trial on a charge of simple battery is that the prosecutrix rented a trailer to the defendant for use as his home at a price of $120 per month; that it was understood at the time that the defendant was commencing a job as a civil servant and due to this fact his first pay check would be late and he would be late in payment; that he entered in possession on December 17 and soon thereafter paid $50 (but whether this sum was to be applied to the first month’s rent or to a security deposit is in dispute); that on January 10 he paid the prosecutrix $100; that on January 13 she came to the trailer to tax the defendant with not having paid a sufficient amount of money and refused to leave. The defendant likewise refused her admission. The prosecutrix was on the outside of the door and the defendant on the inside, with the former holding the door open against his efforts to close it. He then (a) threw a pitcher of water on her and (b) when she still refused to retreat, attempted to slam the door shut. The landlady’s fingers were curled around the door jamb and were slightly injured when the door hit them. There is no question but that this incident was the culmination of a fairly protracted attempt at forcible entry on her part, and also that she and a daughter had come previously on a similar errand and had "fanned out” throughout the "rooms” of the trailer, the prosecutrix insinuating that the defendant might be a thief and have stolen goods on his premises. None of these facts, taken separately or together, gave the prosecuting witness any right to enter the defendant’s lodgings by force. He obviously had a rental contract for at least a month, and the month had not elapsed. Whether, he was slightly overpaid or underpaid (depending on the allocation of the first deposit) he was perfectly within his rights in refusing her admittance. The defendant had a right to use that amount of force reasonably necessary to keep her from entering.

5. It is true that there is some slight testimony on the part of the prosecutrix and her daughter that the confrontation took place outside the doorway, which might, taken alone, be sufficient to create a question of fact as to whether a battery was committed unjustified by the defense of habitation. However, the witness also positively testified that "he tell me,” that he then went inside the trailer and came back with a pitcher of water and "he stay inside and I stay outside,” and it was after this that the defendant attempted to close his door. Where a witness, particularly one with a personal interest in the result of the case, testifies in a self-contradictory manner, that construction most unfavorable to his position should generally be adopted. Cf. Lorance v. Lorance, 216 Ga. 754, 755 (119 SE2d 342). From the evidence in this case taken as a whole it is clear that the defendant used no more force than reasonably necessary to prevent the witness from entering his habitation, and that she had no right of entry over his refusal to accommodate her.

Judgment reversed.

Smith, Shulman, Banke and Birdsong, JJ., concur. Bell, C. J., Webb and McMurray, JJ., dissent. Quillian, P. J., not participating. Submitted September 8, 1977 Decided October 7, 1977 Rehearing denied November 22, 1977 Williams & Finlayson, Theron Finlayson, for appellant. Austin K. Kemp, II, Solicitor, for appellee.