
    Ratcliffe v. The Commonwealth.
    1. An indictment which charges that defendant knowingly and wilfully removed a fence from the lands of P, and did injure and expose the growing crop of P, then on said land, charges but one offence; and is valid.
    2. If the defendant removed the fence under a claim of right, believing it to be his own, and that he had a bona JUk right to it, he committed no offence against the statute.
    
    At the November term 1843, of the County Court of Chesterfield, the attorney for the Commonwealth filed an information, founded on a presentment of the grand jury, against John Ratcliffe, for that he within twelve months preceding the second Monday in August 1843, wit, on the 19th day of May 1843, at the county of Chesterfield, knowingly and wilfully, without lawful authority, did remove a fence from the lands of Joseph Pollard and John Poioell, leased by Wilson Bottom for the present year, and did injure and expose the growing crop of the said Wilson Bottom, then on the said land, contrary to the form of the act of the General Assembly of Virginia, in that case made and provided, and against the peace aud dignity of the Commonwealth.
    
      Ratcliffe appeared, to answer the information, and an issue was made up on the plea of “ not guilty and on the trial the defendant moved the Court to instruct the • jury:
    1st. That if they believe from the evidence that the growing crop on the lands of Powell and Pollard were not exposed or injured by the removal of said fence, that then they should find for the defendant.
    2d. That if the jury believe from the evidence, that the fence was removed in consequence of an agreement between John Powell and said Ratcliffe, that then the jury should find for the defendant.
    3d. That the jury in making up their verdict cannot, under this presentment, take into consideration the exposure of the lauds of VJilson Bottom, in his own right, that not being embraced in the information.
    4th. If the jury believe from the evidence that John Ratcliffe removed the fence under a claim of right, believing it to be his own, and that he had a bona fide 
      right thereto, that then the jury should find for the dexendant.
    The County Court refused to give any of the instructions asked for by the defendant; and the jury found a verdict against him for 90 dollars, upon which judgment was entered. The defendant applied to the Circuit Court of Chesterfield for a writ of error to the judgment, which was awarded; but when the cause came on to be heard in that Court, the judgment of the County Court was affirmed; and the defendant then obtained a writ of error to the General Court.
    Taylor, for the plaintiff in error.
    The Attorney General, for the Commonwealth.
    
      
       Supp. Rev. Code, ch. 226, § 1, p. 280. Be it enacted by the General Assembly, 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, or ahy courthouse, &c. &c., shall be deemed guilty of a misdemeanor, and may be prosecuted and punished as in other cases of misdemeanor, at the common law.
    
   Leigh, J.

delivered the opinion of the Court:

A majority of the Court is of opinion, that the information in this case charges but one offence, either the offence of removing the fence, or the offence of injuring the crop growing on the land by removal of the fence. And being of opinion, if the defendant removed the fence under a claim of right, believing it to be his own, and that he had a bona fide right to it, that he committed no offence by the removal of the said fence; and that therefore the County Court erred in refusing to give the fourth instruction asked for on the trial by the defendant. The Court doth therefore reverse the judgment, and doth remand the case to the Circuit Court for the county of Chesterfield, with instructions to that Court to reverse the judgment of the County Court, and to remand the case to the said County Court for a new trial to be had therein, with instructions to the said Court to give, on the said new trial, the said fourth instruction, if the same shall be again asked for.

Judges Scott and Field dissent from the judgment, being of opinion that the information charges two distinct offences; and that all the instructions asked for, were too broad; and for this that the Court rightly refused to give them.

Lomax, J. not being sustained by the rest of the Court in his objection to the information itself as being bad, concurs in the judgment of Judges Smith and Leigh.  