State v. Birkhead , 48 N.C. App. 575 ( 1980 )

ERWIN, Judge.

Defendants’ initial assignment of error is that the trial court erred in charging the jury that the only force required to constitute forcible entry would be the force necessary to remain on the premises after having been asked to leave. Under the facts as disclosed by the record, we find no prejudicial error in the charge.

To constitute the offense of forcible trespass, there must be a demonstration of force, as with weapons or multitude of people, so as to make a breach of the peace or directly tend to it, or be calculated to intimidate or put in fear. State v. Covington, 70 N.C. 71. “The gist of the offense of forcible trespass is the highhanded invasion of the actual possession of another, he being present forbidding,” State v. Earp, 196 N.C. 164, 167, 145 S.E. 23, 25 (1928), and the other need not be put in fear; it is only necessary that the force be such that the party in possession must yield to avoid a breach of the peace. Id.

In the instant case, the trial court instructed the jury, first, that the multitude of persons entering the property would be sufficient to constitute the required force. This instruction was without error. See State v. Ray, 32 N.C. (10 Ired.) 39; State v. Simpson, 12 N.C. (1 Dev.) 504. Furthermore, we find no error in the trial court’s second instruction:

“Now, as to the failure of the defendant to leave the premises, I instruct you that even though a person enters premises peacefully, if such person thereafter refused to leave the premises upon the order of the person in lawful possession of those premises, then such person would be a trespasser from the beginning and such failure to leave would constitute a forcible entry into the premises. So it is that the State must prove to you beyond a reasonable doubt that the defendant refused to leave the premises after having been ordered to do so by someone in possession of the property. The only force that is required in that instance is the force that would be necessary to remain on the premises after having been requested to leave.”

Had defendants acted individually, this instruction would be clearly erroneous.¹ See State v. Mills, 104 N.C. 905, 10 S.E. 676 (1890), and State v. Covington, 70 N.C. 71. However, here defendants acted in concert with approximately twenty other persons in staging a sit-in. Their number was of such a magnitude that only by yielding to their continued presence could a breach of the peace be avoided, once they had refused to leave as requested. In such a situation, the original entry, though peaceful, becomes unlawful, though no other force is used. See G.S. 14-126; State v. Tyndall, 192 N.C. 559, 135 S.E. 451 (1926); State v. Woodward, 119 N.C. 836, 25 S.E. 868 (1896); State v. Davis, 109 N.C. 809, 13 S.E. 883 (1891).

Defendants next assign as error the trial court’s refusal to instruct the jury on forcible entry as they requested.

Since their first argument that the trial court erred in its instruction on the necessary force to sustain a conviction has been rejected, defendants’ similar argument under this assignment of error is overruled. Thus, we need only address defendants’ argument that the trial court committed prejudicial error in not instructing the jury that to convict defendants of forcible entry, it must find that defendants expelled CP&L from the premises located at 411 Fayetteville Street. We find no error.

Defendants were convicted under G.S. 14-126. While expulsion of possession must be alleged where actual ouster has occurred, we do not believe that such an allegation is essential when the basis for charging defendants with violation of G.S. 14-126 is because of a refusal to leave. Thus, we find the decision in State v. Bryant, 103 N.C. 436, 9 S.E. 1 (1889), distinguishable and hold that the trial court did not err in refusing to instruct on expulsion.

Defendants’ final assignment of error is that its motion to dismiss should have been granted, based on their foregoing argument of insufficiency of force. Since we have already rejected the contention as to sufficiency of evidence of force, we need only consider the sufficiency of the evidence to meet the other elements.

The State’s evidence tended to show that CP&L was the owner of an estate in the premises at 411 Fayetteville Street; that defendants and twenty other demonstrators staged a sit-in in the eleventh floor lobby, even though they were asked to leave by a properly identified CP&L official; that the group’s occupation of the lobby caused come CP&L employees to alter their mail deliveries and others to forego use of the lobby; and that CP&L officials allowed the demonstrators to remain, because they were without means to remove the demonstrators without breaching the peace. This evidence was sufficient to withstand defendants’ motion to dismiss.

In the defendants’ trial, we find

No error.

Judges Hedrick and Arnold concur.

1 We believe that the Supreme Court’s statement in State v. Clyburn, 247 N.C. 455, 101 S.E. 2d 295 (1958), intimating- that a mere refusal to leave by a single individual would sustain a conviction under G.S. 14-126 was mere dictum, since the court was faced with convictions under G.S. 14-134, and our case law requires a greater demonstration of force than the technical trespass.