
    STATE v. JOHN PEARMAN and others.
    In Forcible Trespass it is not necessary that the person from whom the. property was taken, should have been actually put in fear.
    
    Forcible Trespass, tried before Buxton, J., at Fall Term,, 1866, of the Superior Court of Alleghany, upon the following case agreed:
    The force charged was in taking a barrel of blue-stone from the possession of one Aaron Phipps. The barrel had been left with Phipps by one Hines and a constable named Eives, Hines claiming that it was the property of himself and the defendants, and Eives Maiming that it belonged to a third party. It was not to be given up till called for by Hines and Eives, and was locked in Phipps smoke-house-for safe keeping. After it had remained there a month, the defendants, with two others, went to Phipps’ and demanded the blue-stone. He refused to give it up, and they brokeopeñ the door, took it, and divided it, leaving a share for Hines.
    Phipps and the defendants were friendly; there were no-threats used, nor attempts at intimidation, and he was not alarmed by what they did.
    A verdict of guilty was entered, subject to the opinion of his Honor upon the question of law reserved.
    The court afterwards was of opinion that the facts did not constitute a case of forcible trespass, and set aside the verdict. Appeal by the State.
    
      Attorney General, for the State.
    If a person takes personal property forcibly from the possession of another, with an intent to appropriate it to his •own use, but does it openly and above board, he commits a forcible trespass. State v. Sowls, ante 157.
    Not necessary to prove actual force. If the acts of the defendants tended to a breach of the peace they were guilty. State v. Armfield, 5 Ire., 211.
    If Phipps was restrained from insisting on his rights by a conviction that it would be useless, and from a want of physical power to enforce them, and the blue-stone was taken from his presence and against his will, the defendants are guilty. Ibid. ' See also State v. May, 10 Ire., 39.
    The guilt or innocence of the persons charged does not depend upon the right to the property or the right to its possession; but merely upon the fact of the possession. State v. Burnett, 4 Dev. & Bat., 49.
    No counsel, contra.
    
   Read®, J.

Forcible trespass on personal property is the taking by force the personal property of another in his presence. The forcible taking is the ingredient which distinguishes the offence. “ Putting in fear ” is not necessary. If it were, then one man’s guilt would depend upon another man’s nerve. Force is necessary to constitute the offense, because it tends to a breach of the peace; and this is done whether the owner is put in fear or not-; and the rather if he is not put in fear.

His Honor who tried the case was evidently of the opinion that, in order to the guilt of the defendants, the owner of the property must have been “intimidated,” or “alarmed,” In this he was mistaken. It is only necessary that the force should be such as was calculated to intimidate or alarm or involve or tend to a breach of the peace.

Such were the facts of this case; and there was error in setting aside the verdict of guilty.

This opinion will be certified to the court below, to the end that said court may proceed according to law.

Per Curiam. There is error.  