him, did not exempt the defendant, if any property was withheld from his schedule, from the charge of perjury. The maxim is admitted, that ignorance of the law constitutes no excuse for the commission of a crime. But the intention with which the act is done must give a character to the act. A man may innocently commit homicide. If, in doing a lawful act, he should unintentionally kill a fellow creature, he is in no sense guilty of a crime. A bankrupt is bound to exhibit a true schedule of all his property, and if he fail to do this, willfully and fraudulently, he is guilty of perjury. But if he, being unacquainted with the requirements of the law, shall be advised by his counsel, after the facts have been fully stated to him, that certain items of property are not required to be stated on his schedule, and he omits them, he is not guilty of perjury. He acts fairly in submitting the facts to his counsel, and, by acting under his advice, he shows a desire to conform to the law.

"To constitute perjury under the law, the false schedule must have been made corruptly by the bankrupt, and with the intent to defraud his creditors. The falsity of the schedule being established the mitigating circumstances must be shown by the defendant, and if no excuse be proved, the fraudulent intent will be inferred from the act, it being prima facie in violation of the law."

A new trial being granted, a nolle prosequi was entered.

§ 167. Returning Property for Taxation - Mistake. Where a person honestly believed that he was not bound to return for taxation property from the sale of stocks, although he was mistaken and his affidavit false, he was held not guilty of perjury.1

§ 168. Robbery-Bona Fide Belief of Ownership of Property.-In R. v. Hall,2 the prisoner was indicted for robbing John Green, a gamekeeper of Lord Ducie, of three hare wires and a pheasant. It appeared that the prisoner had set three wires in a field belonging to Lord Ducie, in one of which the pheasant was caught; and that Green, the gamekeeper, seeing this, took up the wires and pheasant and put them into his pocket; and it further appeared, that the prisoner soon after this, came up and said: "Have you got my wires?" The gamekeeper replied that he had, and a pheasant that was caught in one of them. The prisoner then asked the gamekeeper to pass the pheasant and wires up to him, which the gamekeeper refused; whereupon the prisoner lifted up a large stick, and threatened to beat the gamekeeper's brains out if he did not give them up. The gamekeeper fearing violence did so. Maclean, for the prosecution, contended, that by law, the prisoner could have no property in either the wires or the pheasant; and as the gamekeeper had seized them for the use of the lord of the manor under the statute, it was a robbery to take them from him by violence. VAUGHN, B. I shall leave it to the jury to say whether the prisoner acted on an impression that the wires and pheasant were his property; for, however he might be liable to penalties for having them in his possession, yet, if the jury think that he took them under a bona fide impression that he was only getting back the possession of his own property, there is no animus furandi, and I am of opinion that the prosecution must fail.

1 United States v. Smith, 1 Sawy. 277 (1870).

2 3 C. &. P. 409 (1828.)

* 5 Anne, ch. 14 sec. 4.

Verdict, not guilty.

§ 169. Setting Fire to Property— Mistake of Right. — In R. v. Twose,1 the prisoner was indicted for having set fire to some furze growing on a common, it appearing that persons living near the common had occasionally burnt the furze to improve the growth of the grass, though the existence of any such right was denied. Said LOPES, J.: "If she set fire to the furze, thinking she had a right to do so, that would not be a criminal offense."

§ 170. Trespass Belief of Right to Property. - Taking property under a bona fide claim of right, is not trespass, as to remove a fence,3 or to cut down trees, or remove a portion of a house."

6

In Dye v. Commonwealth, the defendant was indicted for carrying away two bags, the property of Benjamin Street. He was convicted, but a new trial was granted by the Supreme Court "because it appears to us that the verdict was against the law and the evidence. Of the property, which is the subject of the alleged trespass, the defendant was the general fee simple owner, by purchase from Hardesty, the former owner. The prosecutor was at most a bailee, having a special or qualified property. A controversy arose between them as to the right of the prosecutor to retain the property until paid the expenses of keeping, and as to the quantum or proper charges for these expenses. The defendant, the owner, without a breach of the peace, took possession of his property; leaving the prosecutor to his legal remedy against himself or Hardesty, whichever was liable for his demand. It certainly was not the purpose of the act of February, 1823, upon which this prosecution is founded, to convert every civil injury, by trespass to real or personal property into an indictable misdemeanor; but it was intended to apply to acts of trespass upon the property of another, committed knowingly and willfully, but not feloniously; which the court interprets to mean, without color of title or claim of right, bona fide, and not feigned or pretended for the occasion. If the defendant did not commit the alleged trespass knowingly and willfully upon the property of the prosecutor, but on the contrary believed it to be his own, and that he had a bona fide right to it, he was not amenable to prosecution for a misdemeanor, under the act of February, 1823; though he may have been guilty of a civil trespass. A majority of the court is of opinion that the facts certified in this case did not warrant the jury in finding a verdict of guilty, because these facts certainly do not establish that the defendant took possession of and carried away property of the prosecutor willfully, without bona fide color of title or claim of right, and knowing or believing it was not his own. Therefore the judgment is to be reversed, the verdict set aside, and the cause remanded for a new trial to be had therein, in conformity with the foregoing opinion of the court."

In State v. Newkirk,' CURRIER, J., delivered the opinion of the court as follows: "This complaint was prosecuted in the St. Louis Court of Criminal Correction, and was founded upon the Act of 1869,8 providing for the punishment of certain malicious trespasses. The complaint charges that the defendant willfully, and unlawfully broke and severed from a building owned by the complainant, a lock, plank partition, and certain platform scales, all alleged to be then and there the property of the complainant, and to form a part of the freehold. At the trial

1 14 Cox, 329 (1879).

2 State v. Ellen, 68 N. C. 281 (1873); State

v. Hauks, 66 N. C. 612; State v. Dodson, 6 Cold. 10 (1869).

• Com. v. Cole, 26 Pa. St. 187 (1856).

4 State v. Kempf, 11 Mo. (App.) 88 (1881); State v. Crosset, 81 N. C. 579 (1879).

5 State v. Newkirk, 49 Mo. 4 (1871).

67 Gratt. 662 (1851).

7 49 Mo. 84 (1871).

8 Sess. Laws 1869, p. 71, Wag. Stat., p. 462, sect. 56.

there was no dispute as to the fact of the severance and removal of the scales and plank partition; but the defendant severed and removed them, claiming the property as his own, or that of the firm in which he was a partner. It was in evidence that the scales and partition were put into the building while it was in the occupancy of the defendant and his partner, as tenants under the complainant, and for their convenience as tenants in the use of the building. It also appeared that these articles were removed before the term expired, but not till after the defendant and his partner had assigned the residue of the term to other parties, who attorned to the complainant. It was in evidence, however, that the new parties were to have the use of the scales and partition for the remainder of the term, under and by virtue of an express arrangement with their assignors. Before the term fully expired, the scales and partition were removed by the defendant, and this is the trespass complained of. Was it in the sense of the statute, willful and malicious? In our view the statute was never intended to apply to a case like this, punishing a party criminally for acting upon a mistaken view of his legal rights. There is not the slightest indication in the evidence that the defendant acted wantonly or otherwise than upon an honest conviction of what he believed to be his rights. He is not punishable for that, however mistaken he may have been as to the respective rights of himself and former landlord. Whether his opinion on the question of legal right was right or wrong, we are not called upon to decide, and therefore express no opinion on that point. The law is liberal towards tenants who make improvements for their own particular and temporary use, and which can be removed without working substantial injury to the rented premises. Primarily, such improvements are removable by the tenant.

"Entertaining the opinion that there was no evidence showing malice in the sense of the statute, the judgment against the defendant will be reversed, and the cause remanded. The other judges concur."

In Palmer v. State,1 it was held that one who has been for a long time in the habit of using a way across the land of another, and believes in good faith that he has a right to use it, is not guilty of malicious trespass for removing a fence placed across the way.

DOWNEY, C. J. "This was a prosecution for malicious trespass, based on an affidavit filed before a justice of the peace, charging that the defendant, on or about the 22d day of March, 1873, at, etc., did maliciously, mischievously, and unlawfully injure a rail fence of the value of fifty cents, the property of Ann E. Wright, James M. Wright, William C. Wright, Sarah Wright, and Laura S. Wright, by then and there throwing said rails of said fence down and upon the ground, to the damage of said Ann E. Wright, etc., in the sum of fifty cents, contrary to the form of the statute, etc. The defendant was found guilty before the justice of the peace, and appealed to the Circuit Court, where, upon a trial by jury, he was again found guilty. He then moved for a new trial, which was denied him, and there was final judgment against him. He moved the court to relieve him from the payment of costs of certain witnesses, summoned by the State, but not examined, amounting to over fifty dollars, but this motion was also overruled. In view of the conclusion at which we have arrived upon the main question in the case, it is not necessary for us to consider the question relating to the taxation of costs.

"We shall consider the case upon the question as to the sufficiency of the evidence to sustain the verdict of the jury, which was presented to the Circuit

1 45 Ind. 388 (1873).

Court by the motion for a new trial, the overruling of which motion is assigned for error. The prosecuting witnesses are the widow and children of Roderick Wright, deceased, and they own by inheritance from him a tract of land in the form of an oblong, on the south side of which is a public highway, called the Washington and Apraw Road. The defendant's land adjoins that of the Wright's on the north. From twenty-five to thirty years ago, there was a road or lane, extending from the above named highway north, through the Wright land and the land of the defendant. This last named road was never laid out as a public highway, but was used by the public to a considerable degree. This was the condition of things when the Wright land was purchased by Roderick Wright, and the defendant; land was purchased by him. Twelve or fifteen years ago, the travel on the road was so light that the defendant closed up the road through his land, and the public acquiesced in this. He never, however, ceased to use the road himself from his premises through the Wright land to the Washington and Apraw highway. Roderick Wright threatened to stop up the road on his land by hanging gates across it, but on objection made by the defendant, he did not do so. About two years before the trial, Mrs. Wright said to the defendant, that the lane was then used solely by him, and it was hard for her to keep two strings of fence simply for his accommodation. The defendant, at her request, put up the fence on the east side of the lane. She afterwards attempted to bargain with him for the privilege of putting gates across the way, but they did not finally agree. Mrs. Wright then sent her son and another person, and had them build a fence across the way. The defendant having occasion to pass over the way, and finding the fence across it, tore it down and removed the rails out of the way. The Wrights then commenced the prosecution in this case for malicious trespass against the defendant, the affidavit being made by James M. Wright, one of the sons. The ball of snow which at first is easily rolled by a single hand, by its accumulations becomes so great that it can no longer be moved. The single spark will kindle a flame which may increase to a conflagration. 'Behold, how great a matter a little fire kindleth!'

"This is a mode of litigation which should not only not be encouraged, but which should receive the unequivocal disapprobation of the courts. The question here involved is one of purely private interest and concern, in which the State has not, and should not have, the least lot or share, except to furnish the necessary tribunal in which the parties may settle the controversy between them by the appropriate civil action. Who doubts if the prosecuting parties had known that they must enter the lists on equal terms with the defendant, employing their own attorney instead of using the State's attorney, and being liable for the costs of the action which they might bring, in the event that they were unsuccessful, in like manner as the defendant was liable for costs if the case was decided against him, that they would have hesitated to embroil themselves and vicinity in a tedious, vexatious, expensive, and perhaps unnecessary lawsuit? There is, in this case, no more real ground on which to prosecute the defendant for malicious trespass than there would be for an action for malicious prosecution of this case, to be brought by the defendant here against the prosecuting witnesses. If there is any question about the defendant's ultimate right to the way in dispute, there certainly is no question as to the fact that he believed in good faith that he had such right, and that it was in pursuance of that belief that he removed the obstruction which had been placed in the way by the prosecuting parties. Even the witnesses for the State testify that, while he was in the act of removing the fence, he stated that, 'he had a right to have the lane

open.' There is an uttter failure of the evidence to show any malice on the part of the defendant in removing the fence. The lane was thirty feet wide, and according to what we know of Virginia worm fence, it would require four panels to reach across the lane. The number of rails required would probably be forty. The jury found that the damage done to them by removing them out of the way—it is not shown that they were otherwise injured — was fifty cents. This damage, we presume, is mostly imaginary. Some of the witnesses put the damage at fifteen cents. This is very exact!

case.

"In Howe v. State,1 the defendant was indicted for destroying timber on the land of which he had possession, but there was a question whether the contract by which he held it was valid or not. The court said: 'We think that a criminal prosecution can not be maintained under the circumstances involved in this If any other ruling was to prevail, a man might be liable to prosecutions for acts committed whilst in the possession of lands under contracts declared fraudulent at the end of a long and doubtful lawsuit in the nature of a chancery proceeding.' Windsor v. State, 2 was a prosecution for malicious trespass committed, as was alleged, upon a dwelling-house belonging to the trustees of a church; the defendant, claiming to be the owner, had removed the doors, etc. The court said: We do not think a criminal prosecution a proper mode of trying the title to real estate. A person without color of title could not defeat a criminal prosecution for malicious trespass upon lands, by setting up a title thereto in himself; but when he has a paper title, apparently valid on its face, and claims, in good faith, to be the owner, and in possession, either by himself or others, occupying by his direction, he can not be prosecuted criminally for a trespass committed thereon by him, to the damage of a third person, although such third person, in the end, may prove to have the better title.'

'In Goforth v. State, it was decided that where the defendant threw down the fence of another unlawfully and without right, under the impression that he had a legal right to do so, he was not guilty of malicious mischief. In Dye v. Commonwealth, it was held that the statute of Virginia, to punish malicious trespass, was intended to apply to trespass upon property of another, without either color of title or claim of right bona fide, and not feigned for the occasion; and not to cases where there is bona fide claim of right to the property. Regina v. Langford,5 was an indictment against several persons, under a statfor the felonious demolition of a house. Patteson, J., said in his directions to the jury: I think also, that on this statute a felonious demolition of a house can only be where a number of persons begin to demolish or actually demolish the house from some wrong motive or other. If, therefere, you believe that there was a riot, and that these persons to spite the old man did that which the witnesses have stated them to have done, it is a felonious demolition of the house within the meaning of this act of Parliament. But even if there was a riot, if you believe that the prisoners really thought that it was young Phillips' house' (Phillips being one of the prisoners), and that they did all this bona fide in the assertion of a supposed right, that will take the case out of the operation of the statute, and the demolition of the house would not be felonious, and you ought to acquit the prisoner."

1 10 Ind. 492.

13 Ind. 375.

38 Humph. 37. 47 Gratt. 662.

1 Car. & M. 602.

See further on this subject, 1 Bish. Crim. Law, sec. 298, and vol. 2, sec. 996, (5th ed.).