
    Jake Jordan v. The State.
    CitlMlttAXi Law. Misdemeanor. Punishment. The act of 1870-71, making it a misdemeanor to enter upon the enclosed lands <fl another and to “willfully and wantonly destroy, carry away or injure the trees, shrubs, grain, grass, hay, fruit or vegetables- there being,” must be construed with sec. 4653 of the Code, and the punishment cannot be in excess of three months imprisonment.
    FROM MADISON.
    Appeal in error from the Law Court of Madison county. H. W. McCorry, J.
    J. L. H. Tommy for Jordan.
    Attorney-GeNeral Lea for the State.
   McFarland, J.,

delivered the opinion of the court.

The defendant has been sentenced by the common law court of Madison county to three hundred and sixty-four days’ imprisonment at hard labor in the work-house of the county, and to pay the costs, upon a conviction for a misdemeanor. .

The indictment contains two counts: the first charges that the defendant “ unlawfully did sever and carry away from the freehold * * * one lot of sweet potatoes of the value of two dollars, the property, etc., * * under such circumstances as would render said trespass a larceny if the potatoes had been personal property.” The second count charges that defendant “ did unlawfully and willfully enter upon the enclosed lands of, ” etc. “ and sever and carry away one lot of potatoes of the value of two dollars,” etc.

Section 4652 of the Code declares various acts to be misdemeanors, as set forth in 18 different sub-sections. Among other things, “ To knowingly and maliciously” cut down and destroy valuable timber, etc., sub-sec. 8. “'To knowingly and maliciously” destroy or carry away the rails, boards, wood or lumber of another, sub-sec. 9. To willfully and maliciously break down, mar or deface any fence hedge, etc., sub-sec. 10.

Sub-section 15 is as follows: “To enter upon the garden, orchard or improved land of another, and will-. fully and maliciously to sever, destroy or injure the trees, shrubs, grain, grass, hay, fruit or vegetables there being.” Sub-sec. 16, “ To sever and carry away from such land any grass, hay, corn, grain, fruit, or other vegetables or produce.”

The next section, 4653, provides that the last eight of the foregoing offenses shall be punished by imprisonment not exceeding three months with or without fine.

Thus the law stood under the Code, and the offense designated in sub-section 16 — which is the one charged in the indictment according to the law as it; then stood — is punishable by imprisonment, but the imprisonment is limited to three months.

The act of 1870-71 amends sub-sections 8, 9 and 10, above referred to, so as to omit the word maliciously and substitute the word willfully or wantonly, but it is unnecessary to notice particularly the change. See Revised Code, sec.' 4652a, b, e. The 4th section of the act, Code, sec. 4652d, is as follows: “To enter upon the garden, orchard, or improved or enclosed lands of another and willfully or wantonly to sever, destroy, carry away or injure the trees, shrubs, grain, grass, hay, fruit or vegetables there being, shall be declared to be a misdemeanor.”

This does not refer to or purport to be an amende ment to sub-secs. 15 and 16, of sec. 4652, but it was undoubtedly intended to change the law of these two sections, as changed in the other sections above referred to, by omitting the word maliciously,” which .probably applied to both 15 and 16.

It is true this act of 1870-71, sec. 4, does not define the punishment, but simply declares that such acts shall be a misdemeanor. But we think by a fair-construction the punishment should be limited, as in section 4653. These sections of the Code and the act of 1870-71 should be construed together. By the latter act the grade of the several offenses, so to speak) is amended by omitting the word maliciously,” and it would be hardly reasonable to suppose that the limit as to punishment was intended to be removed, or a greater punishment was intended to be allowed in the offense defined in the 4th section of the act of 1870-71, than in the last 8 sub-sections of sec. 4652.

The judgment of imprisonment, therefore, in excess of three months will be reversed and corrected.  