
    ALLEGHENY COUNTY,
    June Term, 1798.
    Pennsylvania v. John Leach, William Leach, Thomas Leach, and William M‘Lurgh.
    THIS was an indictment for a forcible Entry, on 28th February last, on a tract of land in possession of George Konkle
    
    
      Konkle had bought an old improvement, where there were trees deadened, and potatoes planted. He built a cabbin partly of logs lying cut, and partly of logs cut by him at that time. The Leaches had deadened some trees, and cleared some ground on this land. They threw down Konkle's cabbin, and built another with the legs of it in another place. M'Lurgh assisted them in building this other cabbin. Neither Konkle nor Leach lived then on the land. Konkle lived with his family on another tract of land, which he had bought, two or three miles from this; he was himself generally in this cabbin with some of his goods; and the evening before the Leaches pulled down his cabbin, he had gone home, to sell meat to one who wanted it from him; but went unwillingly, for fear that the Leaches should go into his cabbin, while he was absent. When he returned next day, he found them pulling down, his cabbin. J. Leach, with a gun in his hand, told Konkle, he must not work more there. While he was taking away some of his clapboards, to make a temporary shelter for his family, J. Leach came up to him, and shook him by the breast. One said, “strike him;" T. Leach said, “Don’t strike 
      him;" M'Clurg said nothing. W. Leach threw him against a log. Afterwards he went back, when the Leaches were not there, built another cabbin close to the door of that which the Leaches had built of the logs of his first, brought his family there, and lived in it. While he was making a fence, J. Leach threw him down, and threw down his fence, on which his wife was fitting. He desisted. The Leaches took the rails which he had made, fenced and cultivated ground, which he had begun to clear, before he brought his family there. He went and cleared in another place. Both he and they occupy cleared ground on this tract, and have grain growing on it.
    
      Gilb. L. of Ev. 134.
    
      Gilb. L. of Ev. 134 5.
    
      Collins and Campbell, for the defendants,
    proposed, that M'Clurg, as they said no proof of force by him had been given, should be examined as a witness.
    
      Woods for the prosecutor.
    All who accompany the person using the force are guilty. It has been proved, that M'Clurg was present and assisting to build, into a cabbin for Leach, the logs which had been thrown down from the cabbin of Konkle. Whether there be such a possession, as will be protected against a forcible entry is a question of fact. If there be any testimony, though not enough to convict, in the judge’s opinion, such person can be no witness : for his guilt or innocence must wait the event of a verdict ; and a jury, of their own knowledge may have farther light in the fact, than what they hear from the witnesses in court.
   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.  