
    Powell v. The State.—In Error.
   INDICTMENT against the plaintiff in error for a malicious trespass, in destroying or injuring a saw-log, the property of one John Crow.

The evidence given on the trial was, substantially, as follows: William Powell, the defendant below, had contracted to clear a piece of land belonging to his brother, John Powell, and was to have, for his labor, 5 dollars per acre, and all the beech and sugar trees upon the tract. If he did not wish to take away the timber of these trees he was to cut it into suitable lengths for rolling and burning. On the morning of the day on which the alleged trespass was committed, he had cut down a beech tree and left it upon the ground, after which he was absent during the day. During his absence Crow came to the clearing to procure a beech log, and John Powell told Crow that the tree William had cut would make a good log, and that if William did not want it, he {Crow) might have it, but that he had better see William about it. Crow, then, without having any communication with William Powell, cut a log for sawing off this tree. The log thus prepared for sawing, was afterwards cut in the middle and on opposite sides, as if it had been intended to cut it off, which was the injury complained of. There was some evidence that William Powell had cut the login this manner to prevent Crow from using it.

D. D. Pratt, for the plaintiff.

D. Wallace, for the state.

On the trial below, the defendant was found guilty and a motion for a new trial was overruled.

We think the evidence does not sustain the indictment. It does not prove that the log in question was the property of Crow.

The judgment is reversed. Cause remanded for a new trial.  