
    The State vs. Farnsworth.
    Knoxville,
    June, 1837.
    Au indictment alleged, “that the defendant, on the first day of August, 1836, in the county of Greene, with force and arms, one chesnut sorrel mare, the property of John A. Park, did unlawfully and forcibly take from and out of the possession of the said John A. I’ark:” Hold, that this charge did not constitute an indictable ofifence.
    
      Geo. S. Yerger, Attorney General, for tbe State.
    
      J, Jl. JWKinn y, for defendant.
   Turley, J.

delivered tbe opinion of the court.

Tbe only question presented for tbe consideration of the court in this case is, as to the validity of the indictment: it charges, ‘‘that the defendant, Henry A. Farnsworth, did, on the first .day of August, in the year 1S36, in the county of Greene, with force and arms, one chesnut sorrel mare, the property of John A Park, unlawfully and forcibly take from and out of the possession of the said John A. Park.” Does this contain a charge of a breach of the peace, without which, this bill of indictment cannot be sustained? We are of the opinion that it does not. It is an allegation of an unlawful taking; a trespass, but not a breach of the peace; no breach of the peace is committed in taking the property of another, unless it be taken from bis person. A violation of the possession of property, either actual or constructive, where the owner is not personally present, is only remediable by civil suit for tbe trespass. This bill of indictment does not show what kind of possession was violated by the defendant. The mare may have been taken from the range, where the Jaw says it was in the possession of the owner, in which case we apprehend no one would contend that an indictable offence had been committed. The case of The State vs. Thompson, 2 Ten. Rep. 98, was the case of a slave taken by force, not on the premises of the owner, nor in his presence, but in that case a distinction is attemptedto be drawn between slaves and other personal property, making the taking possession of a slave indictable under circumstances where tbe taking possession of other property would not be.

In a case determined by the Supreme Court of the State Reynoldsburg, in 1829, where a man had been indicted for breaking the stable, and faking by force, a horse claimed by another, neither he nor any of his family being present at the time, I heard that able lawyer Judge Robert Whyte say, that the case from 2 Tenn. Rep. did not, at the time of its decision, give satisfaction to the profession, and in the case then under consideration, the court determined that the offence charged did not contain a breach of the peace, and was not indictable. We, therefore, are of opinion that the judgment of the circuit court is correct and direct it to be affirmed.

Judgment affirmed.  