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.