Opinion
(June Term, 1840.)
1. On an indictment for a riot, it is only necessary to prove the possession of the prosecutor, and that may be done by parol evidence, without the production of any paper evidence of title.
2. An indictment charging a riot and forcible trespass to the land of one cannot be supported by proof that the land belonged to him, but was then in the possession of another as his tenant. It ought to have charged the trespass to have been to the land in the possession of the latter.
THE defendants, seven in number, were indicted at YANCEY, on the last circuit, before Hall, J., for a riot and forcible trespass. The indictment contained three counts. The first charged that the defendants unlawfully assembled to disturb the peace, and did unlawfully and riotously pull down and destroy a milldam of one George Byrd. The second count charged that the defendants unlawfully assembled to disturb the peace, and did riotously cut away and destroy a part of a milldam in the possession of one Malcolm Horton. The third count was for a willful trespass in destroying a milldam in the possession of Malcolm Horton, and in the presence of the said Horton.
The Attorney-General for the State.
No counsel appeared for defendants.
Horton, who was the prosecutor, was in the possession of the milldam at the time of its demolition, and had lived on the land on which the dam was situated for some time before, as the tenant of Byrd, to whom the land belonged. It appeared that the defendants came to the dam, and in the presence of Horton and against his will, cut away 30 feet of it, as low as the mudsills.
His Honor charged the jury that if the dam was in the possession of Horton, and was the property of Byrd, and the defendants cut away the dam in a violent and tumultuous manner, they were then guilty upon the first and second counts of the indictment. And if the prosecutor was in the actual possession of the dam, and the defendants cut it away in his presence, and against his will, they were guilty on the third count. The defendants then prayed the court to instruct the jury that the ownership of the land and milldam by Byrd, and the possession by the prosecutor, could only be proved by the production of the title (33) papers; but the court refused so to charge. The jury returned a general verdict of guilty on all the counts; and a motion for a new trial having been submitted and overruled, the defendants appealed.
The law owes its protection to the citizen in the quiet and peaceable possession of his houses, fences, fixtures, etc., against the unlawful acts of rioters. The State is never called upon, in an indictment for a riot or trespass, to establish a possession by a paper title; parol evidence of such a possession is sufficient. But we think the judge erred in his charge when he said that if the jury believed that the dam was in the possession of Horton, and was the property of Byrd, the defendants were guilty on both the first and second counts. The evidence, we think, was applicable only to the second and third counts, and not to the first. Byrd had but an interest in reversion, and therefore the dam is improperly charged to be his. It belonged in law to him who was in the immediate possession, and that was Horton. The conviction on the first and the conviction on the second count also, on the same evidence, are inconsistent; and the direction of the court that the same evidence would authorize them to find the defendants guilty on both these counts, and also on the third count, seems to us to be erroneous.
PER CURIAM. New trial.
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