Opinion
No. 32615.
May 31, 1937.
1. TRESPASS.
To constitute crime under statute punishing trespass in cutting trees on another's land without his consent, trees must be knowingly and willfully cut (Code 1930, sec. 1149).
2. TRESPASS.
In prosecution under statute punishing trespass in cutting trees on another's land without his consent, defendant was entitled to directed verdict, where state failed to show that trees, which were cut on land of another where boundary line was not clearly marked, were not cut by defendant in good faith (Code 1930, sec. 1149).
APPEAL from circuit court of Forrest county. HON.W.J. PECK, Judge.
Earl L. Wingo, of Hattiesburg, for appellant.
From a reading of the indictment it will be readily seen that the appellant was being prosecuted under section 1149 of the Code of 1930.
This section of the code does not specifically state that the cutting of timber upon lands belonging to another without permission of the owner must be done willfully, but our court has construed this identical section in favor of the appellant.
Twitty v. State, 132 So. 746.
We submit to the court with the greatest candor that nowhere in the record is there any effort whatever on the part of the state to show even by insinuation that the appellant wilfully or knowingly went upon the land of Ted Munson, Incorporated, and cut therefrom pine trees as alleged in the indictment. It being true that there was no proof of wilfulness and it being shown beyond dispute that the appellant probably went beyond the boundary line over and upon lands of Ted Munson, Incorporated, but with no wilfulness whatever, the requested motion for a peremptory instruction should have been granted and sustained. W.D. Conn, Jr., Assistant Attorney-General, for the State.
The evidence, I think, fairly shows that timber on land belonging to another had been cut by appellant and that this cutting was without the consent of the owner or his agent. However, throughout the trial it appears to have been the theory of the state and of the court that the good faith of appellant in cutting this timber was immaterial. At least the court, on objection by the state, took away from the jury all evidence that would substantiate the defense of good faith.
Twitty v. State, 159 Miss. 593, 132 So. 746.
While there is no point made in this respect, I want to call the attention of the court to the indictment in this case and point out that the idea of wilfulness is not incorporated in it and I rather doubt if that indictment charges any crime known to the law in view of what was said in the Twitty case, supra.
In my judgment, a conviction on this state of record is unwarranted.
The appellant was convicted under an indictment charging him with a violation of section 1149, Code 1930, which reads as follows: "If any person shall cut or raft any cypress, pine, oak, gum, hickory, pecan, walnut, mulberry, poplar, cottonwood, sassafras, or ash trees or timber upon any lands belonging to any other person or corporation, without permission from the owner thereof, or his agent duly authorized, such person shall, on conviction, be imprisoned in the county jail not more than five months, or fined not less than ten dollars nor more than one thousand dollars, or both."
In order for a crime to be committed under this section, the trees must be knowingly and willfully cut. Twitty v. State, 159 Miss. 593, 132 So. 746. The evidence for the state discloses that the appellant had acquired a right to cut trees on land owned by Myers, which adjoined the land owned by Ted Munson, Inc., the line between which was not clearly marked. In cutting these trees, the appellant also cut fifty trees on Munson's land without the knowledge or consent of the Munson Corporation. The evidence for the state is barren of any indication that the trees on the Munson land were not cut by the appellant in good faith, believing that he had the right so to do, but seems to indicate the contrary.
The evidence for the defendant discloses, without contradiction, that the trees on the Munson land were cut by him in good faith under the belief that they were on the land belonging to Myers. The court below refused the appellant's request for a directed verdict of not guilty, and charged the jury for the state to find the defendant guilty if they believed from the evidence that he cut the trees "without the consent of said corporation or its duly authorized agent . . .;" "that the good faith of the defendant in entering upon the lands of Ted Munson, Inc., a corporation, if he did enter upon said lands and cut pine trees thereon is immaterial in the case as far as the guilt or innocence of defendant of the crime with which he is charged is concerned, but the court charges the jury that the burden is upon a man cutting trees upon lands other than his own to ascertain whose land he is cutting trees upon, and then he acts at his own peril."
The appellant's request for the directed verdict should have been granted. The judgment of the court below will be reversed and the appellant discharged.
Reversed and the appellant discharged.