
    Peelle v. The State.
    [No. 20,155.
    Filed November 4, 1903. ]
    Constitutional Law. — Town Clerk. — Powers qf Justice of the Peace.— The act of 1901 (Acts 1901, p. 57), conferring upon town clerks the powers of justices of the peace is constitutional, p. 379.
    
    Forcible Entry. — Affidavit.—Description of Premises. — Criminal Law. —In a prosecution for forcible entry, restitution being neither demanded nor contemplated, an affidavit charging that defendant unlawfully took possession of a certain dwelling-house and lands in a certain county in the lawful possession of a person named is a sufficient description of the premises, p. 379, 380.
    
    
      Same. — Special Plea. — Demurrer.—Harmless Error. — No error was committed in sustaining a demurrer to a special plea to an affidavit charging forcible entry, where all matters pertinent to the case were admissible in evidence under the plea of not guilty. p. 380.
    
    
      Same. — Possession.—It is not incumbent upon the State in a prosecution for forcible entry, under §2055 Burns 1901, to prove that the tenant dispossessed was in “rightful” possession of the premises, it being sufficient to show that he was in “peaceable possession.” p. 380.
    
    
      Same.- — Title to Property. — The action of forcible entry or detainer can not be employed in either its civil or criminal form to try the right or title to property, p. 380.
    
    
      Trial. — Instructions.—Oral Directions. — Appeal and Error. — An exception to the contents of an instruction given by the court as to the form of the verdict raises no question as to oral directions given by the court in connection therewith, pp. 381, 38%.
    
    
      Same. — Written Instructions. — Oral Direction as to Form of Verdict. — Oral direction to the jury as to the form of their verdict is not erroneous though written instructions were requested, p. 382.
    
    Criminal Law. — Forcible Entry. — Appeal from Justice of the Peace.— Fines. — May be Increased Beyond Limit of Justice of the Peace.- — Where defendant was convicted before a justice of the peace for a misdemeanor punishable by fine only, and appealed to the circuit court, the circuit court was not limited in the assessment of punishment to the fine the justice might have assessed, since the case was tried de novo, and the court could assess the punishment it deemed just, within the limits of the statute, pp. 382, 383.
    
    From Starke Circuit Court; J. C. Nye, Judge.
    Henry IT. Peelle was convicted of forcible entry, and appeals.
    
      Affirmed..
    
    
      
      H. R. Robbins and W. C. Pentecost, for appellant.
    
      C. W. Miller, Attorney-General, C. C. Madley, W. C. Geake, L. G. Rothschild and E. D. Salsbury for State.
   Hadley, J.

— The transcript was filed in this appeal June 27, 1903, subsequent to the taking effect of the act of 1903 (Acts 1903, p. 280) amendatory of §7 of the act of 1901 (Acts 1901, p. 565), and, the appeal involving a constitutional question, the whole case is before us for decision.

An affidavit charging appellant with forcible entry, under §2055 Burns 1901, was filed before M. T. Hepner, clerk of the town of Knox. The venue was changed to a justice of the peace before whom appellant was convicted, and appealed to the circuit court, where he was again convicted, and prosecutes a further appeal to this court.

The questions properly reserved and presented by the assignment are: (1) The constitutionality of the act approved February 28, 1901 (Acts 1901, p. 57), concerning town officers; (2) the sufficiency of the affidavit; (3) the sufficiency of a special plea; (4) the correctness of certain instructions given and refused; (5) the validity of the judgment.

1. The first question has recently been decided by this eourt adversely to the appellant’s contention. Baltimore, etc., R. Co. v. Town of Whiting, ante, 228.

2. The affidavit upon which the prosecution was had is in these words: “That on November 15, 1902, at'the county of Starke and State of Indiana, one Henry Peelle did then and there, violently, with menace, force, and arms, to wit, sledge, ax, and shotgun, and without authority .of law, unlawfully take possession of a certain dwelling-house and lands in said county situate, which said dwelling-house and lands were then and there and theretofore in .the lawful possession of one Albert Clark; contrary,” etc. The objection made to the affidavit is its uncertainty in the description of the premises entered. This being a prosecution for a forcible entry, and restitution being neither demanded nor contemplated, the description of the premises is sufficient under the rule declared in Strong v. State, 105 Ind. 1.

• 3. The motion to quash having been overruled appellant filed what he terms a special plea, setting forth with much detail and elaboration a history of the contract between the prosecuting witness and appellant, the nonperformance of the prosecuting witness, the liberality of appellant, and the motive that prompted the .prosecution. The sustaining of the demurrer to this plea was at least harmless, since all matters pertinent to the case were admissible in evidence under the plea of not guilty.

4. Appellant complains of the giving of the second, fourth, and sixth instructions to the jury. The single objection urged to these instructions is common to all three, and is to the effect that it was incumbent upon the State to prove that ’the tenant dispossessed by the defendant had not only the peaceable, but the rightful possession of the premises. The court, in charging the jury, limited the essential proof touching the prosecuting witness’ occupancy to “peaceable possession,” omitting the word “rightful,” and this was correct. If the defendant had no right to enter, but did so by forcibly expelling one who had no lawful right, but was in the peaceable possession, the law denounces the act the same as if the possession had been rightful as well as peaceable. The action of forcible entry or detainer can not be employed, in either its civil or criminal form, to try the right or title to property. Swails v. State, 4 Ind. 516; Higgins v. State, 7 Ind. 549; Archey v. Knight, 61 Ind. 311; Vess v. State, 93 Ind. 211. “In a prosecution of this kind,” said the court at page 215 in the last case cited, “the defendant can neither go into evidence to disprove the title of the complainant, nor to establish his own, as the question is not one of civil right, but of public concern, affecting tbe public peace. Tbe offense, considered as an injury merely, is against the possession of tbe prosecuting witness, and not against bis title.”

Tbe instructions are in tbe record by bill of exceptions. At a proper time tbe defendant requested tbe court to instruct tbe jury in writing. It is shown that by tbe last instruction, being number eleven, tbe court directed tbe jury that if they found from all the evidence that tbe defendant was guilty, as charged, beyond a reasonable doubt, they should find and return, in substance, this form of verdict: “We, tbe jury, find tbe defendant Henry Peelle guilty of tbe charge in tbe affidavit, and fix bis punishment at a fine of $.......................... foreman.” It is noted in tbe bill that this instruction is indorsed on tbe margin as follows: “Excepted to April 1, 1903. Robbins & Pentecost, Attys. for defendant.”. Tbe bill then proceeds: “That in giving instruction number eleven tbe court, after reading tbe form of verdict as far as tbe words ‘at a fine of’ stated orally to the jury these words, ‘any sum not exceeding $1,000.’ That to tbe giving of instructions numbered two, four, five, six, seven, eight, and eleven, tbe defendant at tbe time excepted, and noted bis exceptions on tbe margin of tbe respective instructions excepted to.”

Ho complaint is made about tbe substance of instruction number eleven, but an effort is made to question tbe action of tbe court in stating to tbe jury orally tbe words above set out, after having been requested to instruct tbe jury in writing. He must fail in this, however, because there is nowhere within tbe pages of tbe record anything to show that tbe defendant excepted, or even objected, to tbe oral statement of tbe court. Tbe exception noted is to the contents of tbe charge, and not to tbe method of giving a part of it. If tbe court did wrong, to tbe defendant’s injury, be should have complained at tbe time, and given the court an opportunity to right it at a time when he could have done so. Besides, it has been held by this court that oral direction to the jury as to the form of their verdict, to reject ■ evidence, to answer, interrogatories, and the like, are not instructions, and not in violation of the court’s duty, when under a request for written instructions. Bradway v. Waddell, 95 Ind. 170, 175; Trentman v. Wiley, 85 Ind. 33, 36; McCallister v. Mount, 73 Ind. 559, 566; Stanley v. Sutherland, 54 Ind. 339.

5. The fine assessed by the justice of the peace was $13, and that assessed by the jury in the circuit court was $35, and appellant contends that the verdict is contrary to law, in this: that it being a prosecution begun before a justice, or, rather, before a town clerk, who had only the power of a justice of the peace, the circuit court had no jurisdiction on appeal to assess a greater fine than the justice might have assessed; the insistence being that as the justice possessed no jurisdiction under §1706 Burns 1901, to assess a punishment1 beyond a fine of $25, the circuit court on appeal had no greater authority. We can not agree with the appellant in his exposition of the statute. The question involved is not one of jurisdiction at all. The appellant having been charged with a misdemeanor punishable by fine only, the justice of the peace had concurrent jurisdiction with the criminal and circuit court to try it. §1706, supra. In such case the justice’s right to try and determine, which constitutes jurisdiction, is just as complete as that of the circuit court; and, if it shall appear that a fine not exceeding $25 is an adequate punishment, he may render final judgment and end the case, but, if the trial discloses that an adequate punishment will exceed $25, the justice must so find, so determine, and hold the prisoner to bail for his appearance before another court, which has the same power to hear and determine, but larger power to punish. §1705 Burns 1901. The limitation is not upon the justice’s power to try, but upon bis power to punisb. Tbis case does not belong to that class to wbich Nace v. State, 117 Ind. 114, and Horton v. Sawyer, 59 Ind. 587, belong, where tbe law provides that tbe minimum fine or judgment shall be greater than tbe justice has power to render. In tbis class of cases tbe trial of tbe justice would necessarily be a nullity, and hence it is held that be has no jurisdiction, and none is conferred upon tbe circuit court by appeal. Tbe.judgment in this case was rendered by a court of undoubted jurisdiction, and its appeal carried tbe case into tbe circuit court, there to be.tried upon tbe original affidavit, it is true, but de novo, and in all other respects disposed of precisely as other like cases originating in tbe latter court, assessing whatever punishment is deemed just within tbe limits of tbe statute. Wisehart v. State, 104 Ind. 407.

Judgment affirmed.  