
    Howe v. The State.
    A person is not liable to a criminal prosecution for destroying timber on lands of wbicb be bolds possession by virtue of a fraudulent contract of purchase.
    APPEAL from the Allen Circuit Court.
    
      Wednesday, June 23.
   Hanna, J.

This was an indictment found at the February term, 1853, of the Allen Circuit Court.

The first error assigned is, that the Circuit Court had no jurisdiction. This has already been several times decided by this Court. Lawrie v. The State, 5 Ind. R. 525. —Id. 162.—Id. 212.

The next point is, that improper evidence was admitted on the part of the state. The bill of exceptions is, that the Court “ permitted the state to introduce further evidence tending to show that defendant procured said contract from said Jenks by fraud.” This indictment was for cutting trees upon the lands of another. The defendant had given evidence tending to show that he held and occupied said lands by a written agreement between one Jenks and himself to purchase the same; and as rebutting this, the Court permitted evidence, as above stated, to be given.

Is a man liable to a criminal prosecution for a trespass, for destroying timber upon lands which he holds possession of by virtue of a contract obtained by fraud?

D. H. Colerick, for the appellant.

D. C. Chipman and J. W. Gordon, for the state.

We think that a criminal prosecution cannot be maintained under the circumstances involved in this case. 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 law-suit, in the nature of a chancery proceeding. Regina v. Dodson, 9 Ad. & El. 704.—Goforth v. The State, 8 Humph. 37.—Dye v. The Commonwealth, 7 Grattan, 662.

Per Curiam. — The judgment is reversed.  