
    Goforth vs. State.
    1. When defendant threw down the fences of another unlawfully and without right, under the impression that he had a legal right to do so, he is not guilty ofmalicious , mischief, under the act of 1803, ch. 9.
    The act of 1803, (N. & C. 490,) ch. 9, provides, that if any person shall wilfully or maliciously burn, or cause to be burned, any stacks of flax, or any fences, boards, timber, or any other lumber, or throw down any fences, shall on conviction be fined not exceeding five hundred dollars, and imprisoned not exceeding one year. .
    Goforth was indicted in the circuit court of Sullivan county, for wilfully and maliciously throwing down the fences of Thomas J. Chase.
    
      The case was tried by judge Lucky and a jury, at the November term, 1847, on the plea of not guilty.
    It appeared that Chase rented, by article 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 the 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 wilfully and maliciously throwing down the fences of the prosecutor.
    The jury found the defendant guilty. He moved for a now 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.
    
      
      Arnold, for the plaintiff in error.
    
      Attorney general, for the state.
   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 wilfully 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 com; 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 pretence whatever for holding, that the removal of the rails from the fence, was with an unlawful, wilful 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 reversed and the case remanded for a new trial.  