#### THE STATE vs. ELIJAH PHIPPS.

At the common law no trespass on chattels was an indictable offence with, out a breach of the peace ; that is, either the peace must be actually broken, or the act complained of must directly and manifestly tend to it, as being done in the presence of the owner, to his terror or against his will.

The case of the State v Flowers, 2 Mur 225, cited and approved.

Appeal from the Superior Court of Law of Ashe County, at the Fall Term 1847, his Honor Judge Pearson presiding.

The indictment is for a forcible trespass in killing a dog, the property of James Perry. The jury returned a special verdict, which is as follows: The jury find, that, on the 10th day of March 1847, near the dwelling house *18of James Perry,'in the county of Ashe, Lugena Ann Perry and Franky L. Perry were in the possession of a dog; that the defendant was approaching the house, when the dog rushed at him and attempted to bite him : that with much difficulty he kept the dog off, by means of his gun : that Lugena and Franky L. Perry, who were a short distance from the dog, but not in sight, the view being obstructed by the corner of the house, hearing the dog bark, immediately came round, and with a stick drove the dog away ; that, as the dog was retiring, and at the distance of about seven steps, the defendant fired and killed him in their presence. The jury find that the defendant was on good terms with the said Perry, the said Lugena and Franky L. Perry, and came to the house of Perry on a friendly visit, and at no time, either before, during or after the rencounter with the dog, manifested any ill feeling towards the said Lugena and Franky Perry, or attempted in any way to intimidate or alarm them; that he carried his rifle, with which he shot the dog, as is the custom in that County, for the purpose of killing such game, asbe might meet with in passing through the mountains : that the said Lugena and Franky L. Perry, one of whom was about thirteen end the other about eleven years of age, were much excited and alarmed by the scuffle with the dog and the explosion of the gun: that the dog was killed against their will, he being a great favorite in the family, but he was fierce and in the habit of attacking stangers, both abroad and at borne, and only to be kept off by a blow with a weapon or the call of his master: that Perry and his wife were both out in the field at work, when the dog was killed. Whether according to these facts is the defendant guilty or not guilty, the jury are ignorant and pray the advice of the Court. If the Court be of the opinion he is guilty, they find him guilty ; if the Court be of the opinion he is not guilty, the jury find him not guilty.

*19The Court was of the opinion that the defendant was not guilty, and gave judgment for him, from which judgment the solicitor appealed.

Attorney General, for the State.

No counsel for the defendant.

Nash, J.

We see no error in the judgment of the Court below. At the common law no trespass to chattels was an indictable offence, without a breach of the peace. Not that an actual breach must be committed, but something more must be 'done than what amounts to a m.ere civil trespass, expressed by the terms vi ét armis. The peace must be actually broken or the act complained of must directly and manifestly tend to it, as being done in the presence'of the owner, to his terror or against his will. In the case of Mills 2 Dev. 420, the Court in their opinion use the expression “in the presence of the party” &c. It is manifest the-owner is meant, for in the succeeding sentence they say “ where they neither put the owner in fear nor provoke him to an- im'mediate redress of his wrongs, nor excite him to protect the possession of his chattels, by personal prowess — and none of these can happen in the absence of the owner and his family — the trespass is not indictable'” The special verdict shows, that James Perry and wife were absent in the field at work, and it does'not show that any member of his family was present. State v. Flowers and Hampton, 2 Murphy 225.

Per Curta?,i.

Judgment affirmed.