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STATUTE NOT IN CONFLICT WITH SECTION 642.-There is no conflict between this section and section 642, and an indictment charging that defendant did cut and destroy "a wire fence enclosing a pasture," may be sustained under the above section. Biggers, 108-760.

TENANTS. This section does not embrace the case of injury to a building by a lessee during the continuance of his term. Whitener, 92-798.

The husband of the prosecutrix leased a field of defendant under an agreement by which the husband was to put a fence around the field, which he did. The husband died and prosecutrix continued in possession up to the fence, but the fence in fact was a division fence between prosecutrix and another tenant of defendant. Defendant, upon notice

to the prosecutrix, removed the fence, she forbidding the removal: Held, that defendant was guilty. Piper, 89-551.

Where the tenant of the prosecutor in possession of a house simply goes out of the same, and takes a lease from the defendant, and then goes back professedly under the lease from defendant, his relation as tenant to the prosecutor remains,. his possession as tenant not having been surrendered to the original landlord; and where, in such case, the prosecutor, after an abandonment of the premises by the tenant, goes to the house and stores his fodder and some tools in it and fastens the doors, and the defendant afterwards goes to the house and bursts open the door, defacing it by splitting off part of the facing, and takes up the sleepers in one of the rooms and puts his mules in there, the defendant is guilty of wilful injury to the house, though he had a deed to the premises older than that under which the prosecutor claimed, and had been advised by his attorney to enter and take possession, since his taking such a violent and injurious possession of the house while the prosecutor was so in possession was a wilful injury to the house, and the question of a bona fide belief that he was the owner and had a right to enter does not apply. Howell, 107-835.

PERSON ENTERING MUST BE A TRESPASSER.-One who peaceably enters on land and erects houses thereon under the belief that he had the right to do so, but, being still in possession, tears them down and removes them on discovering that he was on the lands of another, is not such a trespasser as would make him guilty. Reynolds, 95-616.

PROSECUTOR MUST HAVE POSSESSION.-Where the prosecutor has neither the actual nor constructive possession of the houses demolished, defendant must be acquitted. Reynolds, 95-616.

WHAT CONSTITUTES A "CULTIVATED FIELD."-A piece of land cleared, fenced and used for cultivation according to the ordinary course of husbandry, although nothing may be growing thereon at the time of the trespass, is a "cultivated field" within the meaning of the statute. McMinn, 81-585.

A field in a course of preparation for making a crop, though no crop is actually planted, is a cultivated field within the meaning of the statute. Allen, 35 (13 Ired.), 36.

A town lot is a "field" within the meaning of the statute. McMinn, 81585.

DIVISION FENCE ON LAND OF DEFENDANT.-The removal of a fence dividing the field of defendant and the prosecutor is not indictable under this statute when the fence is altogether on the lands of defendant. Watson, 86-626.

Where there is a controversy about the dividing line between the prosecutor and defendant, and the fence removed is shown to have been around a cultivated field in the actual possession of the prosecutor, evidence that the fence was on land belonging to defendant is incompetent. Marsh, 91

It is not indictable for one to remove a fence from his own land which had been unlawfully put there by another, though it partially encloses a cultivated field belonging to the other. Headrick, 48 (3 Jones), 375.

WHAT KIND OF FENCE IS PROTECTED.-An erection, consisting of posts nine or ten feet apart on which slats were nailed, placed by the side of a road and separating it from a field, but which did not connect with any fence or surround the field, is not such a fence as is protected from injury. Roberts, 103-744.

INDICTABLE, THOUGH DEFENDANT HAS BETTER TITLE.-The removal of a fence from around a cultivated field in the possession of another is indictable, though defendant may have a better title to the premises than the prosecutor. Hovis, 76-117.

TITLE. Where a person has neither possession nor right o possession to land, he can not, on indictment for unlawfully removing a fence therefrom, raise a question as to the right of entry, nor is it any defence that he did the act to bring on a civil suit in order to try the title. Graham, 53 (8 Jones), 397.

An omission to conclude contra forma statuti is fatal to the indict ment. Hill, 79—656.

INJURY TO CATTLE NOT INDICTABLE AT COMMON LAW.-The wounding of cattle maliciously is not an indictable offence at common law. Manuel, 72-201.

VARIANCE. Proof of injury to an ox will not support an indictment charging injury to a cow. Hill, 79-656.

OWNER TURNING HIS STOCK OUT IN STOCK-LAW TERRITORY.-It is no defence to an indictment for injury to live stock that the stock law prevailed in the community, and the prosecutor turned his stock out, or permitted them to run at large through negligence, since in such cases the stock may be impounded. Brigman, 94-888.

DOGS. The owner of a dog has such a property in him as will sustain an indictment for injury to property. Latham, 35 (13 Ired.), 33.

EVIDENCE AGREEMENT.--Evidence offered by defendant to prove that he and the prosecutor had agreed upon the removal and had had a surveyor to locate the line, and that he moved the fence to such location in good faith, believing that he was carrying out the agreement, was improperly excluded, since if true he could not be guilty. McCracken, 118— 1240.

REMOVING FENCE-THE OFFENCE. To constitute the offence of removing a fence the defendant must be a trespasser, and to be a trespasser he must act wilfully and unlawfully. McCracken, 118-1240.

Sec. 274 (1081). Malicious injury to real property. R. C., c. 34, s. 11. 1873-24, c. 176, s. 5.

If any person shall maliciously commit any damage, injury or spoil upon any real property whatsoever, either of a public or private nature, for which no punishment is provided by any existing law, every person so offending shall be guilty of a misdemeanor: Provided, that nothing herein shall extend to any case where the the party trespassing or doing the injury acted under a fair and reasonable belief that he had a right to do the act complained of, nor to any trespass not being wilful and malicious, committed in hunting, fishing or the pursuit of game. When the owner or one

of the owners of an estate in possession shall complain of the injury before a justice of the peace of the county in which the offence is charged to have been committed, before the regular term of the superior court next after the commission of the offence, and shall fail to state in his complaint that the damage exceeds ten dollars, the punishment, upon conviction of the offence, shall not exceed a fine of fifty dollars or imprisonment for thirty days.

Sec. 275 (1082). Injury to personal property. 1876-'7, c. 18. 1885, c. 53.

If any person shall wantonly and wilfully injure the personal property of another, he shall be guilty of a misdemeanor, whether the property be destroyed or not, and shall be punished by fine or imprisonment, or both, in the discretion of the court.

INDICTMENT.-An indictment for injury to a dwelling-house in the possession of a lessee must lay the property in the lessee. Mason, 35 (13 Ired.), 341.

It is not necessary that the indictment should charge that the act was "unlawfully" done. Martin, 107-904.

An indictment for injuring a cow concluding at common law, which fails to charge that the offence was committed "mischievously or from malice to the owner," can not be sustained. Hill, 79-656.

[This is changed since the act of 1885, amending the above statute by striking out the words "through malice to the owner."]

NOTE. A promissory note, or due bill, being an "evidence of debt" and embraced in the term "personal property" (section 3765 [6] of The Code) the wanton and wilful injury to or destruction of it is indictable. Sneed, 121-614.

INDICTMENT. An indictment for killing a hog running at large in a town in violation of a town ordinance prohibiting hogs from running at large in the town, which simply charges that the killing was done "unlawfully and on purpose," can not be sustained. Tweedy, 115-704.

It is not necessary to allege or prove any malice toward the owner of the property injured or destroyed. Sneed, 121-614.

NOT NECESSARY THAT PROPERTY BE DESTROYED.-It is immaterial whether the property was actually destroyed or not. Sneed, 121-614.

INJURY TO STOCK.

See also STOCK LAW AND FENCES.

Sec. 276 (1002). Cattle and live stock, the wilful killing or injuring of, running at large in the range. R. C., c. 34, s. 104. 1850, c. 94, s. 2. 1885, c. 383. 1895, c. 190.

If any person shall unlawfully and on purpose drive any live stock, lawfully running at large in the range, from said range, or shall kill, maim, or injure any live stock, lawfully running at large in the range, or in the field or pasture of the owner, whether done with the actual intent to injure the owner, or to drive the stock from the range, or any other unlawful intent, every such person, his counsellors, aiders, and abettors, shall be guilty of a misdemeanor: Prorided, that nothing herein contained shall prohibit any person from driving out of the range any stock unlawfully brought from other states or places, and in any indictment under this section it shall not be necessary to name in the bill or prove on the trial the owner of the stock maimed, killed or injured.

One who kills a hog running at large in a town in violation of an ordinance prohibiting the running at large of hogs therein, although the owner lives outside the town, is not guilty of injury to property under this section. Tweedy, 115-704.

Sec. 277 (1003). Cattle and live stock, injury to, in unlawful inclosure. 1868'9, c. 253.

If any person shall wilfully and unlawfully kill or abuse any horse, mule, hog, sheep or other cattle, the property of another, in any inclosure not surrounded by a lawful fence, such person shall be guilty of a misdemeanor, and fined or imprisoned at the discretion of the court: Provided, that this section shall not apply to any county or territory where the stock law prevails.

INDICTMENT. An indictment for injury to stock in "the field" of the prosecutor, "the same not being surrounded by a lawful fence," is fatally defective. The word "field" has not as extensive signification as "inclosure," and therefore the terms are not equivalent. Staton, 66-640.

An indictment which alleges that defendant did kill a certain cow "in an enclosure not then and there surrounded by a lawful and sufficient fence," sufficiently describes the inclosure without stating to whom it belongs. Painter, 70-70.

An indictment which fails to allege that the killing was "wilfully and unlawfully" done is defective. Simpson, 73–269.

The omission of the word "wilfully" in an indictment for injury to stock is a fatal defect. Parker, 81-548.

INTENT SHOWN BY RECKLESSNESS.-Where defendant recklessly shoots at eattle in his corn-field to frighten and run them out, and kills the prosecu

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tor's mule, which he did not see, the corn being very high, his recklessness shows the criminal intent, and he is guilty. Barnard, 88-661.

INJURY BEGAN WITHIN BUT COMPLETED OUTSIDE THE FIELD.-Where defendant set his dogs on a cow in a field not surrounded by a lawful fence, and the dogs chased and worried her both within the field and outside of it, though the witness could not say whether the injury was inflicted in the field or out of it, he is not entitled to an instruction that unless the cow was injured in the field he would not be guilty, since the offence is complete if the injury is begun within the field but completed outside. Godfrey, 97-507.

Where the state fails to prove that the cow was shot in the field of defendant, he is entitled to a new trial. Deal, 92-802.

The word "cattle" embraces all quadrupeds, including “goats." Groves, 119-822.

Sec. 278 (2482). Cruelty to animals forbidden. 1881, c. 34, s. 1; c. 368, s. I. 1891, c. 65.

If any person shall wilfully overdrive, overload, wound, injure, torture, torment, deprive of necessary sustenance, or cruelly beat, or needlessly mutilate, or kill, or cause or procure to be overdriven, overloaded, wounded, injured, tortured, tormented, or deprived of necessary sustenance, or to be cruelly beaten, needlessly mutilated. or killed as aforesaid, any useful beast, fowl, or animal, every such offender shall for every such offence be guilty of a misdemeanor, and upon conviction shall be fined not more than fifty dollars or imprisoned not more han thirty days, or both fined and imprisoned as aforesaid.

INDICTMENT.—An indictment charging defendant with "shooting" a cow is sufficient, since the word shooting, though not used in the statute, is equivalent to wounding. Butts, 92-784.

An indictment for cruelty to animals which, simply charges that defendant did "torture, torment and act in a cruel manner towards a certain animal" is fatally defective for failure to set out the facts constituting such cruel conduct. Approving State v. Allison, 90-733, and State v. Butts, 92-784. Watkins, 101-702.

EVIDENCE.-Evidence that the cow killed by defendant entered defendant's field over a part of a cross fence which it was the prosecutor's duty to keep up, and that defendant killed the cow to prevent her from injuring his crops, is inadmissible. Butts, 92--784.

Where the prosecuting witness, on indictment against defendant for killing a hog, is asked by defendant if he did not say to a certain person that "rather than be outdone by a negro he would swear to any amount of lies," and such statement is denied, he can not be contradicted by proof that he did make such statement, since it is entirely collateral. Roberts, 81-605.

POLICEMAN.-Defendant, a policeman, in an attempt to stop a runaway horse in the streets of a town, struck it with a large stone and caused it to fall: Held, that it was error to instruct the jury that defendant was guilty, it being the province of the jury to determine whether the presumption that the policeman acted in good faith in the discharge of his duty was overcome by proof of a wilful purpose to injure the horse. Isley, 119

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