¶1 This court is of opinion that .the evidence offered does not support the charge of forcible trespass, and-that' the defendants were improperly convicted and sentenced.
¶2 To constitute that offence, the act complained of must be done presentí domino, and must involve a breach of the peace or tend thereto. The injury done to the prosecutor by the *537 loss of his corn, the law will redress by a civil action. But before it can amount to a public wrong to be punished by indictment, there must be something done, at the tíme of the entry, to put the prosecutor in fear, or incite him to force either to resent his wrongs or protect his property; and as none of these things can happen in his absence, so neither can the offence be committed in his absence.
¶3 The title to the property is of no moment in forcible trespass. But it is the invasion of the actual possession of another and not his constructive possession, done in his presence and under.such circumstances as endangers the public peace, that makes the offence.
¶4 “The very gist of the offence,” says Judge Pearson in State v. McCanless, 9 Ired., 375, “ is the high-handed invasion of the actual possession of another, he being present; title is not in question.” The facts of that cáse were, that the prosecutor had let his house and field to one Mitchell to make a crop, and, after the expiration of the term, entered and resumed possession, slaying in the house all night with Mitchell. The next morning he went for his goods for the purpose of putting them in the house, and during his absence the defendant, claiming to have sub-leased from Mitchell, entered with his permission,and, when theprosecutor returned with his goods, refused to let them be taken into the house, and a fight ensued. It was held, while the defendant might have been guilty of a forcible detainer, he was not guilty of a forcible trespass, because his entry, having been made in the absence of the owner, was peaceable; and though, when the owner returned and entered the house, the law presumed possession to be in him because of his better title, still, it could not by relation make the defendant guilty of a forcible trespass. To the same effect are State v. Mills, 2 Dev., 420; State v. Love, 2 Dev. & Bat., 267, and State v. Smith, 2 Ired., 127.
¶5 In the case at bar, the defendants may likewise have been *538 guilty of a forcible detainer, and probably are. But it is impossible for them to have been guilty of the offence charged, since their entry upon the premises was made in the absence of the prosecutor. And even admitting the better title to be in him, so that upon his coming into the field the law would presume the possession to be in him, still, it could not by relation affect, the original entry of the defendants, and make that forcible, when in fact it was without force.
¶6 To sustain this prosecution upon such proof as was given of the possession, would be to convert an action of trespass into an indictment, as was said in State v. McDowell, 1 Hawks, 449.
¶7 Error. Venire de novo.