
    The State of Kansas v. Ed. Tincher.
    No. 10552.
    Malicious Trespass — Driving Horses over Another's Land. It is not a misdemeanor under either paragraph 2241 or 7157 of the General Statutes of 1889 to “ wilfully and maliciously trespass upon” lands of another “by driving a herd of about 120 horses over and across said land, and allowing the said horses to wander over and trespass upon said land, and thereby destroying the growing grass upon said land.”
    
      Appeal from Barton District Court.
    
    
      Hon. Ansel B. Clark, Judge.
    
    Affirmed.
    Opinion Filed June 6, 1896.
    STATEMENT BY THE COURT.
    A complaint was filed before J. IT. Jennison, a justice of the peace of Barton county, of which the following is a copy :
    “State of Kansas, Barton county, ss. S. Kinsel, being duly sworn, on oath says, that on the 20th day of June, 1895, in the county of Barton and state of Kansas, Ed. Tincher did then and there unlawfully and maliciously trespass upon the land of this affiant, said land being northwest quarter of section 11, in township 18, range 12, and affiant has a leasehold estate of and to said land and is entitled to the undisturbed possession thereof ; that the said Ed. Tincher at the time herein complained of did wilfully and maliciously trespass upon said land by driving a herd of about 120 horses over and across said land, and allowing the said horses to wander over and trespass upon said land, and thereby destroying the growing grass upon said land belonging to the affiant.”
    On this complaint a warrant was issued, the defendant arrested, tried, and fined $25 and costs. From that conviction he appealed to the district court, and there filed a motion to quash the complaint and warrant on the ground that no public offense was charged. The court sustained the motion, and the state then asked leave to amend the complaint, but the court refused to allow an amendment, and discharged the defendant. The state excepted, and brings the case to this court by appeal.
    
      F. B. Daiues, attorney general, and G. W. Nimocks, county attorney, for The State.
    
      Swartz & Smith, for appellee.
   The opinion of the court was delivered by

Allen, J. :

The complaint filed against the defendant does not charge an offense under either paragraph 2241 or 7157 of the General Statutes of 1889, and the court ruled correctly in quashing it. Nor was there any error in refusing to permit the state to amend. There is nothing in the record showing in what particular the state desired to amend the charge, and counsel in this court fail to indicate any public offense of which, the state claims the defendant was guilty. There is no statute making it a misdemeanor to drive horses across the land of another and allow them to destroy growing grass thereoD, even though it be wilfully and maliciously done. The act does not fall within any provision of the sections of the statute cited. The injured party has his remedy by civil action for trespass.

The judgment is affirmed.

All the Justices concurring.  