
    Campbell and Others v. The Commonwealth.
    June, 1843.
    Criminal Law — Trespass—Construction of Statute— Case at Bar. —A party in actual and peaceable possession of land, wtict lie claims as bis own, encloses it with a fence. About four years after-wards another person, who claims the same land and has a better title to it, forcibly pulls down and removes the fence. Hkkd, this is not a trespass for which a prosecution can be sustained under the statute of February 14, 1823, Acts of 1822-3, ch. 31, § 1.
    An indictment for wilful trespass, containing two counts, was found against David C. Campbell, Elisha Hobbs and Alexander Smyth, in the circuit court of Lee county at April term 1842. The first count charged that the defendants, on the 31st of March 1842, at the said county, “did ■unlawfully and maliciously, and without lawful authority, pull down, injure and destroy a certain fence then and there 792 being on the land of John G. *King in the said county, against the form of the statute” &c. The second count charged that the said defendants, on &c. at &c. “did knowingly and wilfully, without lawful authority, but not feloniously, take and carry away a certain other fence then and there being on the land of John G. King in the said county, against the form of the statute” &c.
    
    The defendants pleaded not guilty. Upon the trial, a patent to John G. King, dated in 1822, and embracing the land in question, was introduced on the part of the commonwealth. The prosecutor further gave evidence, that 18 or 20 years ago, a certain James Campbell, claiming that King’s patent interfered for a few acres at one corner with his (Campbell’s) land, went upon the disputed part, built a cabin on it, and lived there for sometime. That King, in October 1824, brought his complaint of forcible entry and detainer against Campbell, upon which, during the same month, a verdict was found for King, but in consequence of an informality in the finding, judgment was rendered in favour of Campbell: whereupon King threatened suit by writ of right; to prevent which, Campbell, before leaving the courthouse, agreed to surrender possession to King, and did shortly afterwards surrender it, and King had ever since held peaceable possession, until the commission of the trespass now complained of. That about 793 *4 years ago, King fenced the disputed land, and cleared and cultivated part of it; 3 or 4 years after which, the defendants went upon the land and tore down and removed the fence, in opposition to the remonstrances of King. Shortly after-wards, this indictment was found against them.
    On the part of the defendants, evidence was adduced for the purpose of shewing that the said James Campbell, under whose authority and direction the alleged trespass was committed, had title to the land older and better than that of King. Campbell himself was examined as a witness. He claimed, under various deeds which he produced, 500 acres of land, parcel of a tract of 920 acres alleged to have been granted by the commonwealth to W. Anderson ; but no patent was produced, nor were the deeds aforesaid in any way connected with such patent; and one of them purported to have been made by the widow and executor of a decedent, without authority from him to convey. Neither was it shewn that any of those deeds conveyed the land on which the trespass was alleged to have been committed.
    After the evidence was closed, the attorney for the commonwealth moved the court to instruct the jury as follows: “If the jury shall believe from the evidence, that, at the time of the commission of the trespass charged in the indictment, John G. King was in actual peaceable possession of the land inclosed by the fence in the indictment mentioned, under a claim of right thereto, and had built said fence, and held such possession for about four years prior to the said trespass; then, although James Campbell, who had employed the defendants to commit the act charged as a trespass in said indictment, may have had a better legal title to the land inclosed as aforesaid than the said King, the defendants had no authority to enter forcibly upon the said land and pull down and remove said fence, and 794 *an entry by them for such purpose, under the authority of said Campbell, and the pulling down and removing said fence, if done by the defendants, amount to such an act of trespass as is sufficient to sustain this prosecution.”
    The court gave the instruction; being clearly of opinion that the same was correct in point of law, though entertaining some doubt whether the evidence in the case even tended to prove a title in Campbell superior to that of King, and so whether the instruction was not objectionable as presenting merely an abstract proposition.
    To this instruction of the court, the defendants excepted.
    The jury returned a verdict finding the defendants guilty, and assessing upon each of them a fine of 1 dollar 66 cents; and the court rendered judgment against them for the fines so assessed, and the costs of the prosecution.
    On the petition of the defendants, the general court, at the last term, awarded a writ of error to the judgment.
    H. S. Kane for the plaintiffs in error: the attorney general for the commonwealth.
    
      
      Criminal Law — Trespass—Construction of Statute.— For the proposition that the statute of February 14, 1823, has been uniformally construed to be a statute ag-alnst wilful trespass, the principal case is cited in State v. Porter, 25 W. Va. 690. See Israel’s Case, 4 Leigh 675 ; Dye’s Case, 7 Gratt. 662.
    
    
      
      The indictment was framed upon the statute of February 14, 1823, (Acts of 1822-3, p. 36, ch. 34, § 1; Supp. to K. C. p. 280, ch. 226.1 which enacts, “that any person who shall knowingly and wilfully, without lawful authority, cut down any tree growing on the land of another, or destroy or injure any such tree, or any building', fence or other Improvement, or the soil or growing crop on the land of another ; or shall knowingly and wilfully, without lawful authority, but not feloniously, take and carry away, or destroy or injure any tree already cut, or any other timber or property real or personal belonging to another,” — “shall be deemed guilty of a misdemeanour, and may be prosecuted and punished as in other cases of misdemeanour at the common law.” — Note in Original Edition.
    
   The general court decided, “that the instruction which the circuit court gave to the jury upon the trial was incorrect, and ought not to have been given.” Therefore, judgment reversed, verdict set aside, and cause remanded to circuit court for a new trial.  