#### The State v. Hugh Simpson & John Fisher.

From Bladen.

If three persons commit a trespass upon property, in the presence of the person in possession, their number makes it indict .ble, although actual force is not used.

The Defendants were indicted for that they “ wit!» force and arms, and *with strong hand,*in &c. into a certain corn fi, Id. there &r. in the peaceable possession of one *Sarah McDaniel,*did enter, and one bushel of corn, then and (here with force and arms, and *with strong hand*from the possession of the said *S. M.*did take and carry away.”

On ihe trial the case was, (hat the prosecutrix *Sarah McDaniel,*and her sister were gathering the corn, when the Defendants with two other persons, entered the field-with a cart, and demanded of the prosecutrix a portion of the crop, which was refused by her, whereupon, they bes n to gather the standing corn, and take that whi-h. had been gathered by the prosecutrix, and although forbidden by her. carried it all away.

His honor Judge Norwood informed the Jury, that if three or more persons go together to commit a tre-p .-s, an t do commit it, the number constitutes the force, a,id *V*i-dcrs the trespass indictable ; a-d ttmt if the pec-on in legal possession is present, and forbids the trespassers *505from proceeding, which is disregarded and the trespass committed, this renders it indie table.

*.*The Defendants were convicted, and appealed.

No Counsel appeared for Defendants.

Bevereux, in place of the Attorney-General,

cited 1 *Hawkins, eh*28, § 27 & 28. *Russel on Crimes*70, ¡14. *Rex*x. *Wilson*(8 *T. R.*357) *Rex*v. 8torr{3 *Burr.*1698) *Anonymous*(3 *Salk,*i 87).

Taylor, Chief-Justice.

The indictment charges the offence sufficiently, if the facts will warrant the inference of law, that the act amounted to a trespass; for-the words “ with strong hand,” import something criminal' in ils nature, something more than is meant by the words *vi et armis,*which are the mere formal words in an action of trespass. The others constitute a sufficient allegation of an actual force used, amounting to a breach of the peace, more especially when it is charged to have been committed by two persons. The enquiry therefore is, whether the facts proved, according to the case sent up, amount to an indictable trespass. In *Regina*v. *Soley*& *others,*it is said by *Lord Holt,*that *• as to what act Will make a riot or trespass, such act as will make a trespass, will make a riot by which he must be understood to mean, if committed by three or more persons. (11 *Mod.*116). The converse of the proposition most be true, that a trespass committed by three or more persons will make a riot. In every trespass, as well as riot, there, must be some circumstances, either of an actual force or violence, or at least of an apparent tendency thereto, as are apt to strike a terror into the people ; but it is not necessary that personal violence should have been committed. *(Clifford*v. *Brandon,*2 *Campbell*369). Any resistance on the part of the prosecutrix must have led to an actual breach of the peace ; but the resistance of two women to the four persons who came to take the *506corn, must have been unavailing. They came there to take it, and would have used the necessary force, if their numbers had not terrified the owner into submission. It ¡s n0 anawer t0 the indictment therefore, that they quietly gathered the corn, and pot it into the cart; for acts of extreme violence, as robbery, are sometimes committed under a very civil appearance. I think this was more that» a civil *injury;*and for the reason given by the Judge who tried the cause, I am of opinion that the judgment should he affirmed.

Per Curiam — Judgment affirmed.