"The judgment is reversed, and the cause remanded with instructions to grant a new trial." § 171. Land Held Under Fraudulent Contract-Criminal Trespass. — In Howe v. State,1 it was held that a man was not liable to a criminal prosecution for destroying timber on lands of which he held possession by virtue of a fraudulent contract of purchase. "We think," said the court, "if any other ruling was to prevail, a man might be liable to prosecutions for acts committed whilst in the possession of lands under contracts declared fraudulent at the end of a long and doubtful lawsuit, in the nature of a chancery proceeding." §§ 172, 173. Paper Title Mistake of Law-Malicious Trespass.-In Windsor v. State, where a person had a paper title to property apparently valid on its face, and claimed in good faith to be the owner, and was in possession by himself or agent, a prosecution against him for a malicious trespass to the damage of a third person was not sustained, though such person in the end proved to have the better title. WORDEN, J. "Prosecution against Windsor for a malicious trespass committed by him, as was alleged, upon a dwelling-house belonging to the 'trustees, in trust for the Methodist Episcopal Church of the Indiana Annual Conference.' Trial by the court, conviction and judgment, a motion for a new trial having been overruled. It appears by the evidence, all of which is set out that at the time the trespass was committed, one, Lindsay Elkins, was in possession of the property by the direction of the defendant, but was about moving out, and had moved a part of his household furniture, and one, Sarah Jane Cone, was about moving into the house, or perhaps had moved in, by the authority of the trustees of the church. The defendant claimed the property as his own, and removed the doors, and otherwise injured the house, saying that he was going to move it away. In March, 1848, one Samuel Winegar and wife conveyed the land on which the house stood, to the trustees of the church, but at what time the deed was recorded does not appear. The land thus conveyed was a small piece estimated to contain three acres and a half out of a certain tract. Afterwards, in September, 1852, the said Winegar and wife conveyed the whole of said tract, without exception or reservation, to said Lindsay Elkins, and in December, 1854, Elkins and wife conveyed the above tract to the defendant. The defendant thus had a paper title to the premises, derived from the same source as that held by the trustees. It may have been a valid title, for it does not appear at what time the deed to the trustees was recorded, nor was there any evidence showing that either Elkins or the defendant had notice thereof before receiving their respective conveyances. The house appears to have been in the possession of the defendant, as Elkins was occupying it by his direction. The question arises whether, under these circumstances, the defendant can be held responsible criminally, for a trespass committed upon the house. We think not. In Howe v. State, it was decided that a man can not be held criminally responsible for destroying timber upon lands of which he holds the possession by virtue of a contract obtained by fraud. We do not think a criminal prosecution a proper mode of trying the title to real real estate. A person without color of title, could not defeat a criminal prosecution for malicious trespass upon lands, by setting up a title thereto in him "MR. ALFORD "POVENSEY ROAD, EASTBOURNE, July 11th, 1867. Sir: I hereby give you notice to give and deliver up to me on Thursday next, July 18th, the iron bedstead which you hired of me on the 28th of January last. S. BINDON. Willoughby, for the prisoner, was stopped by the court. KELLY, C. B. What evidence was there to show that the prisoner knew that his wife had only hired the bedstead? L. Smith. It was a question for the jury upon all the facts. He was in possession of the bedstead, which had been hired only, and he and his wife were both present at the sale by him. There was evidence of his complicity. KELLY, C. B. Why must he have known that the bedstead was hired only, and not bought by his wife? The conviction can not be sustained. The rest of the court concurred. Conviction quashed. So one who takes § 163. Maliciously Injuring Property - Claim of Right. property under color of right is not guilty of maliciously injuring or secreting it.1 § 164. Malicious Mischief Belief of Right. - And it is not malicious mischief to tear down a fence which a party believes is a trespass on his rights." Where a statute punishes the willful or unlawful killing of pigeons, a person who under an idea of right kills a pigeon which is trespassing on his lands is not punishable.3 In Sattler v. People,* upon the trial of S. for malicious mischief, it appeared there was a controversy between the prosecutors and S. in regard to the possession of a certain lot of land, S. being in actual possession. Upon the prosecutor's attempting to run a division fence across the lot, A. took up the posts and tore off the boards, while the fence was in process of erection, and forbade them from making the fence, protesting that they had no right to do so, and that he was paying rent for the whole of the premises. In behalf of S. an instruction asked that if the jury believed from the evidence, he was in possession of the premises and paying rent they should find him not guilty, was refused, and S. was convicted. On appeal the conviction was reversed. "We think," said BREESE, J., “this instruction should have been given. The statute in regard to malicious mischief 5 does not apply to cases of this kind where opposition is made by a claimant of premises of which he is in actual possession, to the erection of a fence across the same without his consent." In Goforth v. State, it was held that one who unlawfully and without right throws down the fences of another is not guilty of malicious mischief, if he acted under the impression that he had a legal right to do so. The act of 1803,7 provided that if any person shall willfully or maliciously burn, or cause to be burned, any stacks of flax or any fences, boards or timber, or any other lumber, or throw down any fences, shall on conviction be fined not exceeding five hundred dollars, and imprisoned one year. Goforth was indicted in the Circuit Court of Sullivan County for willfully and maliciously 1 Hampton v. State, 10 Lea, 640 (1882). 2 Sattler v. People, 59 Ill. 68 (1871); R. v. Langford, 1 C. & M. 601 (1842); Palmer v. State, 45 Ind. 388 (1873). a Taylor v. Newman, 9 Cox, 314 (1863). 4 59 Ill. 68 (1871). 5 Rev. Stats. ch. 30. throwing down the fences of Thomas J. Chase. The case was tried by Judge LUCKEY and a jury, at the November term, 1847, on the plea of not guilty. It appeared that Chase rented, by articles of agreement, a field to Goforth; that when it was drawn Goforth said it said nothing about the garden and house attached, to which Chase replied that he already had possession of the house, and that he intended him to occupy that and cultivate the garden. The agreement of occupation was for a year. The defendant and prosecutor, Chase, fell out about the rent, and defendant, against the protest of prosecutor, removed a portion of the fence from one part of the land to another for the purpose of erecting a pig pen. He, however, left the fence in a better condition than when he took possession of the premises. The Attorney-General, on behalf of the State, insisted that the agreement in regard to the house was not in writing, and therefore not binding on the prosecutor; and counsel for defendant insisted that the agreement for the occupation of the premises, or a part of them, for a year or less was binding. The court charged the jury, that the validity of the parol agreement in regard to the house and garden was of no consequence, but that they must be satisfied that the defendant removed the fences unlawfully and maliciously with the intent to injure the owner of the premises. He said, if defendant had not legal right to the premises on which the fence was situated when he took possession of the house and garden, yet in point of fact he believed he had such right, and acted under such impression of his right, he would not be guilty of willfully and maliciously throwing down the fences of the prosecutor. The jury found the defendant guilty. He moved for a new trial. The motion was overruled, and defendant was fined five dollars, and ordered to be imprisoned in the county jail twenty-four hours. He appealed. TURLEY, J., delivered the opinion of the court. "This is an indictment against the defendant, Goforth, for malicious mischief; and the specification is, that he did maliciously, unlawfully and willfully throw down the fences of Thomas J. Chase. "The proof shows that Goforth had rented of Chase a lot of ground to be cultivated in corn; that Chase permitted him to live in a cabin on his land round which there was a small lot of open ground, under fence, which he was also permitted to use for a garden; that during the time he was thus in the use and occupation of the premises, he took a portion of the rails from the fence for the purpose of making a pig pen, but that he left the fence when he gave up the possession of the cabin in as good or better condition than he found it. There is no pretense whatever for holding that the removal of the rails from the fence was with an unlawful, willful and malicious intent to injure Chase, but, on the contrary, with the belief of his right, arising out of his occupation of the premises, so to use the rails. The proof, then, does not sustain the verdict found by the jury, and the judgment of the Circuit Court will therefore be re. versed, and the case remanded for a new trial." § 165. Obstructing the Working of Mines - Mistake. In R. v. Matthews,1 it was held that a statute which enacted that whoever shall unlawfully and maliciously do certain acts with intent to damage or obstruct the working of a mine, should be guilty of a felony, did not render a person criminally liable for acts causing such damage, done in the bona fide exercise of a supposed right. It ap peared that in 1865 the prosecutor obtained from the Crown a gale within the Hundred of St. Bravels in the Forest of Dean, containing the "Invention" pit. One Elton obtained a neighboring mine. In 1873 the prosecutor entered into an agreement with the prisoner Mathews by which the latter was to work the gale, and ultimately divide the profits. The working began and continued until 1874. In April, 1874, the prisoner, Matthews bought Elton's property. In June, 1875, the prosecutor began to work the "Invention " pit, so as to connect his workings with an old pit in the neighboring ground aforesaid. In May, 1876, he heard from the prisoner, Matthews, that unless he, the prosecutor, bought the mine which had belonged to Elton, he, the prisoner, would stop up an air shaft on it. The prosecutor went on working and did not buy the property. By Rule 1, of those made by the commissioners for the Forest of Dean, "All persons now or at any time hereafter holding one or more gale or gales of any mine or mines of coal within the Hundred of St. Bravels, shall be entitled to the free and unrestricted use and enjoyment of all the levels, draughts, drains, cuts, out and water-courses, pits, shafts, and pit heads, belonging or appertaining to the gale or gales so holden, with liberty to dig, sink, work, and drive, make and use sueh levels," etc. On the 1st day of June, 1876, the prisoner Matthews, and the prisoner Twigg, his workman, acting under his directions, stopped up the airway. On the 13th of July, 1876, the prosecutor's solicitors wrote to the prisoner Matthews: "We have been consulted on the subject of your having stopped up the pit on your land, part and parcel of the 'Invention' Colliery, whereby you have stopped up the airway of the other pit being worked by Mr. Matthews, belonging to the same work, by which you and those who assist you have rendered yourselves liable to severe punishment, and unless you remove the obstruction within forty-eight hours from the delivery of this letter to you, application will be made to the justices at Littledean, on Monday next, for a warrant against all parties concerned in stopping up the airway." The prisoners disregarded the letter and did not remove the obstruction, whereupon the prosecution was instituted. BRETT, J., to the counsel for the prosecution, at the end of the opening speech. There is no case against the prisoner Twigg. Let him stand aside. You say the prisoner, Matthews, has committed a felony. When? Lawrence. When he stopped up the airway. BRETT, J. Then the soliciting either amounts to an attempt to compound a felony, or treats the acts of the prisoner as done in the exercise of an alleged right. But the act must be done maliciously, wickedly. I am perfectly clear that the prisoner is not within the statute; if he did the act in bona fide exercise of an alleged right. Lawrence. Where the act is willfully done, malice is presumed. As in cases of arson; even if a man by willfully setting fire to his own house, burns also the house of one of his neighbors, it will be felony, for the law in such case implies malice, particularly if the party's house were so situated that the probable consequence of its taking fire was that the fire would communicate to the houses in its neighborhood; and generally, if the act be proved to have been done willfully, it may be inferred to have been done maliciously unless the contrary be proved.2 The absence of malice or spite to the owner is no answer to the charge. [BRETT, J. 1 See R. v. Probert, 2 East P. C. 1030, 1031; R. v. Isaac, Ib. 1031. 2 Bromage v. Prosser, 4 B. & C. 947, 255. 3 Archbold's Cr. Pl. & Ev. (18th ed.) 537. If, of course, you were able to prove that he intended to spite George Matthews, the case would be different]. He disregarded the notice. BRETT, J. The case has been opened with perfect clearness, and I am of the opinion that if every fact stated were proved there would be no case to go to the jury; because I think the act charged must be done not only willfully, but maliciously, that is to say, with a wicked mind, and if it is done under a bona fide claim of right it is not done maliciously according to our criminal law. The evidence to be adduced shows that the prisoner did the act after notice and openly, and it is preposterous to say that he did it otherwise than under a bona fide claim of right. Whether he had a right or not, must be tried in a civil court, and indeed it is evident from the letter that the prosecutor considered that the prisoner was acting under such bona fide claim of right. Both prisoners must be discharged. Verdict of not guilty entered. § 166. Perjury- Mistake of Law. -Perjury can not be founded on a mistake or misconstruction in a clause of a deed.1 In R. v Dodsworth, the prisoner being indicted for giving a false answer as to his qualifications as an elector, Lord DENMAN, C. J., charging the jury said: "I do not think you ought to convict a person who possessed property equal in value to that which he held at the time of the registration, if he has acted bona fide and has been governed in his conduct in a matter of law by persons who are conversant with law and who have told him that he possessed the same qualification to vote for which his name was originally inserted in the register of voters." In an Alabama case it is said: "Evidence of the advice of the attorney of Hood at the time the affidavit was drawn and sworn to, was competent to show the absence of corrupt motive. It was competent to show that the accused might have been thus led into a mistake. Then the oath, though untruthful, could not have been perjury." 993 In United States v. Connor, it was held that a bankrupt who in his schedule sworn to by him has omitted certain items by the advice of his counsel is not guilty of perjury. "The defendant," said Mr. Justice MCLEAN, was indicted for perjury under the bankrupt law, and was found guilty by the jury at the last term, the presiding judge being absent. The indictment contained but one count, charging the defendant with having furnished a false inventory of his property, in not including his interest in a house and lot, his interest in a grocery store, and in certain choses in action The verdict was general, and a motion being made at the last term for a new trial, it was continued to the present term. This motion is opposed on the ground that the circuit courts of the United States have no power to grant new trials, in any case of felony; that the common law must be their guide, and that at common law, no new trial in a criminal case can be granted except in case of misdemeanor. This question was considered and decided in the United States v. Keen," and it will not be again examined. There can be no doubt that the court may, on cause shown, grant a new trial in any criminal case. The principal ground relied on for a new trial is, the charge to the jury on the fact proved, that the schedule being made out on the advice of a lawyer, a full statement of the facts being submitted to 1 R. v. Crespigny, 1 Esp. 280 (1800). 28 C. & P. 219. & Hood v. State, 44 Ala. 87 (1870), citing State v. Lea, 3 Ala. 602. 4 3 McLean, 573 (1845). 61 McLean, 429. |