| Neb. | Jan 15, 1885
This is an original. application to this court for a writ of habeas corpus. The application alleges that A. E. Eads is unlawfully deprived of his liberty by the sheriff of Gage county upon a mittimus issued by a justice of the peace of said county, and that said Eads is not charged with the commission of any offense. Copies of the complaint and mittimus are attached to the application. The complaint and mittimus allege that the said Eads, on the twenty-fourth day of August, 1884, in the county of Gage and state of Nebraska, “did unlawfully, feloniously, willfully, maliciously, and without lawful authority, enter upon the farm of Mathias Joseph and cut down and destroy fruit and shade trees to the amount of $44. Said trees were grown on the farm of said Joseph, in Gage county, Neb.”
Section 88 of the criminal code, under which the applicant is prosecuted, is as follows: “If any person or persons shall willfully and maliciously, and without lawful authority, box, bore, bark, girdle, saw, cut down, injure, or destroy, to the amount in value of thirty-five dollars or upwards, any fruit, ornamental, shade, or other tree or trees, standing or growing in any orchard, nursery, or grove the property of another', every such person or persons shall be imprisoned in the penitentiary and kept at hard labor not more than ten years, nor less than one year, and shall moreover be liable to the party injured in double the amount of damages by him sustained.”
It is not alleged in the complaint or mittimus that the trees alleged to have been injured were the property of any other person than the party charged with their destruction. The principal element of the crime, as defined by the statute, is, that the trees alleged to have been injured must have been “ the property of another.” If it was not, no crime has been committed. In a complaint or indictment the innocence of the party sought to be charged must at least be negatived. It was not done in this case.
Judgment accordingly.