#### THE STATE vs. WILLIAM WILSON et al.

On an indictment for a riot, it is only necessary to prove the possession of tho prosecutor, and that may be done by parolp evidence, without the production of any paper evidence of title.

An indictment charging a riot and forcible trespass to the land of one, cannot be supported by proof that the land belonged to him, hut 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 Yancy, on the last circuit, before his honor Judge Hall, for a riot and. forcible tresspass. The indictment contained three counts. The first charged that' the defendants unlawfully assembled to disturb the peace; and jdid unlawfully and riotously pull down and destroy a mill dam 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 mill dam in the possession of one Malcolm Horton.- The third count was for a wilful trespass in destroying a mill dam in the possession of Malcolm Horton, and in the presence of the said Horton.

Horton, who was the prosecutor, was in the possession of the mill dam 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 thirty feet of it, as low as the mud sills.

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 tbe jury, that the ownership of the land and mill dam by Byrd, and the possession by the prosecutor, could only be proved by the production of the title papers; but the court re*33fused so to charge. The jury returned a general yerdict of guilty on all the counts; and a motion for a new trial having been submitted and overruled, the defendants appealed.

No counsel appeared for the defendants in this Court.

The Attorney General for the State.

Daniel, Judge,

after stating the case as above, proceeded as follows: The law owes its protection to the citizen in the quiet and peaceable possession of his houses, fences, fixtures, &c., 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; parole 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: but 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 authorise them to find the defendants guilty on both these counts, and also on the third count, seems to us to be erroneous. The judgment must be reversed and a new trial granted.

Per Curiam. Judgment reversed.