Pennsylvania v. Leach

1 Add. 352

• Court: Pennsylvania Court of Common Pleas, Alleghany County
• Decided: June 15, 1798
• Status: Published

Opinion

President.

Whether, if there be evidence of possession, that evidence be true, is a question of fact to be determined by the jury. But admitting the testimony as true, whether there be such possession proved as will be protected against a forcible entry, is a question of law to be determined by the court. I lay no stress on any knowledge which the jury may have, not drawn from evidence given before the court. This would destroy all principles, and render it impossible for courts to give new trials. If any juror has knowledge of facts not given in evidence, he ought to declare it, and be sworn as a witness. If circumstances be proved, from which it is possible for the jury to presume facts amounting to guilt, the person against whom those circumstances have been proved cannot he received as a witness.

The cabbin built by Konkle does not seem to have been his home. His home, his house and his family were two miles from this place. But while he was in it, or on the land, it was a temporary home, and, as such, while so occupied, it is protected against force. Proof of force, and of an entry by force has been made. And, if this force was exerted, while he was in the house, or on the land, there is an offence. The guilt or innocence, therefore, turns on this question ; was Konkle in the house, or on the land, when Leach made this entry ? This is a question of fact, and, however improbable, we are not the judges of its probability or improbability ; since there are circumstances from which the jury may presume it. Therefore, though, the prosecutor being a competent witness, we might lean to the admission of this defendant, as a mean of producing an elucidation of the facts ; we do not feel ourselves at liberty to admit M'Clurgh to give evidence on this trial.

Collins then offered in evidence a warrant for this land, and a survey of it made on this warrant.

Woods. No right will authorise an entry by force, on the possession of another. If there was no possession in another, there is no offence.

Collins. I offer the warrant and survey, to shew that Leach had a right, under the act of assembly, to make an entry in order to make a settlement.

President. The warrant and survey gave a right to enter, and make the settlement. But the entry must be peaceable. If a previous possession be taken, and will not be abandoned from the influence of persuasion, force must not be used. The person having the right by warrant to enter, if prevented from making his settlement, by the possession of another, whom he cannot remove without committing an offence, cannot, from such failure, be supposed to lose his right.

This would seem to me to be the true doctrine, on general principles. Whether the peculiar nature of the act of assembly, under which these settlements are made, ought to distinguish cases under it from other cases, may perhaps be made a subject of discussion. It may perhaps be contended, that one who has a warrant, and has done, or caused to be done, some work on the land claimed by this warrant ; if, while the person employed in making such settlement, is occasionally absent, another comes on the land ; may turn this other off by force. On this I say nothing.

2 Hawk. 280. 2 Burns. J. 179.-2 Bac. Abr. 558.

But may not one having made a survey on a warrant, give in evidence this survey, not as establishing a right, but as circumscribing the bounds of his possession ?

It was then admitted, that Leach had a warrant and survey, and that Konkle was within this survey.

It was proved, for the defendants, that in spring 1797 (the two cabbins were then built) Konkle being asked who cleared a certain field, said, John Leach had cleared it ; and that he said, he had once given up that land.

Collins and Campbell. Konkle was not in possession, when the Leaches entered and built their cabbin with the logs of his. Konkle abandoned his possession ; and Leach was working on this land, when Konkle returned.—Leach has a survey ; Konkle has none. Leach has not ousted Konkle of any land of which he was possessed. He yet occupies his house and his fields. As to any land now in the possession of Leach, you have no evidence of its having been in the possession of Konkle, but from his own testimony ; and he is a competent witness only as to the force.

Woods. It is not necessary, in order to make a forcible entry an offence, that there should be any person residing on the land. Breaking open a dwelling-house, whether any person be in it or not, is indictable as a forcible entry.

President. I think that must be understood of a dwelling-house on premises of which some person is in possession. Having only cattle on the land has been considered as not being in possession. And the reason assigned is, because they are not like servants capable of being substituted as agents, and therefore their residing upon the land continues no possession.

The jury found the defendants guilty.