#### STATE vs. MARK D. ARMFIELD & AL.

In an indictment fox- a forcible trespass for taking away goods, it is not abso lately requisite to use the words “ against his will.” It is sufficient to use words which necessarily convey the same meaning.

To constitute a forcible trespass, it is not necessary that actual force be used. Acts which tend to a breach of the peace may amount to it.

Where three persons took away a slave from another, an old and feeble man, in his presence and against his will, and he. was restrained from insisting on his rights by a conviction that it would be useless, and for want of physical power to enforce them, Held that this was a foi’cible trespass, for which the party was liable to indictment.

The cases of the Slate v. Mills. 2 Dev. 420. Slate v. Pollok, 4 Ired. 305, and State v. FisJier, I Dev. 504, cited and approved.

Appeal from the Superior Court of Law of Davie County, at the Fall Term, 1844, his Honor Judge Manly presiding.

*208The defendants were tried upon the following indictment, to wit:

“Fall Team, 1843.

“ The jurors for the State upon their oath present, that Mark D. Armfield, Martin Booe, and William H. Martin, all late of the said county, laborers, on the 8th cay of August, in the year aforesaid, with force and arms, and with a strong hand in said county, from and out of the possession of one John Myers, a certain negro man named Baal, unlawfully, forcibly, violently, and with a strong hand, did take and carry away, he, ,the said John Myers, then and there being personally present and forbidding t;he same, against the peace and dignity of the State.”

The facts proven on the trial were, that John Myers had been in the peaceful possession of the negro slave Baal for seven years — that on the 20th of March, 1843, the three defendants went to the dwelling house of John Myers, afte~ dark, and asked permission to stay all night; Myers conse." >- ed that they should do so, and ordered the slave Baal to take their horses and put them ¿n the stable; the defendants went to accompany the slave; a few minutes afterwards, the slave was heard to cry out, as if in distress — that Myers, with one Henry Armsworthy, his step-son, who was there by accident, immediately set out in the direction of the noise; Armswor-thy first came up with the party, Myers being very old and a cripple; shortly afterwards, Myers came up to them also, when' they found Baal tied and in custody of the three, about an hundred yards from the house; they both demanded to know what the meaning of this conduct was; either Booe or Armfield said, they had a process against Baal for stealing, and they meant to take him to a neighboring blacksmith’s shop for trial; both Myers and Armsworthy demanded to see their process, but they refused to shew it; they both then demanded the liberation of the negro, which was refused; the defendants then went off with the negro, and Armsworthy, at the instance of Myers, went along to see what they were going to do; before they got to the place mentioned for trial, *209Martin told Armsworthy that they had no process Baal, that this was all a sham. Armsworthy then again demanded the negro from Martin, and was again refused: Booe ® " and Armfield were at this time a little in advance of the other two, and not within hearing ; Booe and Armfield had shortly before this told Armsworthy, that they did not mean to stop at the blacksmith’s shop; Myers was very old and infirm, and Armsworthy was also weak from bad health ; Myers had no other assistance — the defendants, on the other hand, were strong and able bodied yottng men. It was also proven that the defendants had no process against Baal.

. The court, after explaining to the jury in general terms, the doctrine of indictable trespasses (to which there was no objection) proceeded to say that it was not á necessary constituent of such an offence, that the individual, whose rights were violated, should oppose the seizure or taking away of his property by force, provided he were over-awed and prevented from doing so by a superior force and a disinclination to engage in a breach of the peace ; nor was it necessary that he should in express language forbid the trespassers, provided the jury be of opinion that it was against his will; that wherever property is taken by a superior force from the presence of one, who is in peaceable possession, and contrary to the will of the possessor, the offence is consummated. The court, going on further to instruct the jury, called their attention to the state of facts, when the old rtían Myérs came up to the parties, and told them, that, as neither of the defendants was a'known officer of the law, the prosecutor Myers had a right to see their warrant for the arrest ofhis slave, and was not bound to submit without its being shewn ; and, if he were restrained from insisting on his rights by a conviction that it would be useless, and a want of physical force to maintain them, and the defendants carried off the slave, under the circumstances in proof, from his presence and against his will, they would be guilty. The defendant’s counsel asked the court to instruct the jury, that, if Myers was deceived by the representations of the defendants, and assented to the taking away of the slave, under *210the impression that they had a valid process against him, they would not be guilty. The court told the jury, that every citizen was presumed to understand his legal rights, and it should be assumed by them for granted, that Myers knew he had a right to see their process; and, if, in connection with this presumption, they found upon the evidence sufficient to justify them in the conclusion, that he consented to waive his rights, and was willing that the negro should go with them, they ought to acquit the defendants — if the case was otherwise, however, and according to the hypothesis already presented, they ought to convict them.

The jury found the defendants guilty.

The defendants then moved, in arrest of judgment, that the indictment did not charge that the taking was against the will of the prosecutor. This motion was over-ruled, and judgment having been rendered against the defendants, they appealed.

Attorney General for the State,

No counsel for the defendants.

Daniel, J.

First, the defendants moved in arrest of judgment, because the indictment did not charge that the taking of the slave was against the will of the prosecutor. It is true, that the indictment must contain an averment of some greater force being used by the defendants, than is expressed by the ordinary words vi et armis. But we think that the averments made in this indictment, that the defendants took the slave unlawfully, forcibly, and resolutely, and with a strong hand, from, and out of the possession of the prosecutor, (he, the said John Myers, then and there being personally present, and forbidding the same) are sufficient averments.that the taking was against the will of the prosecutor j without stating in totidem verbis, “ that it was against his will.” State v. Mills, 2 Dev. 420.

Secondly, we are not able to see that the charge of the judge to the jury was erroneous. The prosecutor was not compelled to prove, that the defendants used actual force, be*211fore they could be guilty of the offence charged ; for if the acts of the defendants, in the taking of the slave, tended to a breach of the peace, they were as much guilty of a forcible trespass, as if an actual breach of the peace had taken place. We know the law to be, that where a person enters on land in the possession of another, and then, either by his behavior or speech, gives those who are in possession just cause of fear, that he will do them some bodily harm, if they do not give way to him, his entry is considered forcible, and therefore indictable. State v. Pollok, 4 Iredell, 305. In the case of the State v. Fisher, 1 Dev. 504, it was held, that the number of actors — three—by whom the prosecutor was overawed, and prevented from resisting, made their acts an indictable trespass; and that the civility with which they apparently demeaned themselves, while in truth, they intended at all events to take by force, if necessary, the property from the possessor, would not diminish their guilt, since acts of extreme violence, as robberies and burglaries, are often committed under civil appearances or fraudulent pretences. The defendants here take possession of the slave, in the manner mentioned in the case ; the prosecutor (an old enfeebled man) demanded of the defendants that the slave should be given up to him, which they refused to do, and carried him away by means of their superior force. The judge told the jury, that if Myers 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 if the defendants carried the slave away from his presence, and against his will, they should find the defendants guilty. We think, that the charge was correct; the prosecutor must have had a just ground for fear. The judgment must be affirmed, and this opinion certified to the Superior Court for Davie county.

Pee. Curiam, Ordered accordingly.