Lawless v. State

PEE. CURIAM. This appeal is prosecuted from a conviction had in the county court of Craig county, on the 5th day of July, 1912, in which the defendant was found guilty of so-called malicious trespass, and was sentenced to pay a fine of one hundred dollars. The evidence shows that the defendant was in the possession of certain premises under leases for eight or nine years, and had built and rebuilt certain fences thereon. That the complaining witness, Charles Coppers, purchased said land; that the defendant removed the wire for about seventy yards along the section line by cutting the staples off the posts. That he had done this under a claim of right while he was yet in possession of the premises. No briefs have been filed. However, a cursory examination of the record shows that the information does not state facts sufficient to constitute an offense, and that the evidence is insufficient to show the commission of an offense, and that the instructions do not properly state the law of malicious mischief, which evidently was the offense attempted to be charged, and which is called malicious trespass in the information. As said by this court in McGlasson v. State, 9 Okla. Cr. 135, 130 Pac. 1174: “The most the prosecuting witness would be entitled to, under the law, would be to maintain a civil action for the value of the fencing, and we think that is doubtful. He certainly would not be entitled to invoke the power of the state to prosecute the accused criminally. In equity and good conscience, he is not entitled to anything, and ought to be required to pay the costs of' this x>rose-eution. ” It is our opinion that this ease is destitute of merit. The judgment of conviction is reversed and the cause remanded with direction to dismiss.