32 F. 780 | U.S. Cir. Ct. | 1887
This writ of error is prosecuted to reverse a conviction under an indictment of which the following is the material part for this case:
“That heretofore, to-wit, during the years 1883,1884,1885, and 1886, in said district, and within the jurisdiction of this court, Geo. S. Leatherbury did unlawfully cut, and cause to be cut, a quantity of timber, to-wit, 31,784 pine trees of the value each of fifteen cents, then and there standing and growing upon certain lands of the United States, theretofore acquired, to-wit, (inserting description of lands,) with intent to dispose of the said timber, in a manner other than for the use of the navy of the United States, to-wit, for his own use and benefit against the peace and dignity of the United States, ” etc.
The statute of the United States under which the indictment was found and the prosecution had, is section 2461, Itev. St. U. S.j and it provides, among other things:
“If any person shall cut, or cause or procure to be cut, or aid, or assist, or be employed in cutting, any live-oak or red cedar trees, or other timber on, or shall remove, or cause or procure to be removed, or aid, or assist, or be em*781 ployed in removing, any live-oak or red cedar trees, or other timber from, any other lands of the United States, acquired, or hereafter to be acquired, with intent to export, dispose of, use, or employ the same in any manner whatsoever, other than for the use of the navy of the United States, every such person shall pay a tine not less than triple the value of the trees or timber so cut, destroyed, or removed, and shall be imprisoned not exceeding twelvemonths.”
On the trial the following hill of exceptions was taken:
“On the trial of this cause it was proved that the cutting charged in the indictment was done by boxing pine trees, on the lands therein mentioned, for turpentine purposes; that none of the trees boxed were thereby felled or severed from the ground; that the lands on which the trees were standing had been entered under the homestead law; that no patent had been issued to any of the enlerers; that the boxing was with their consent, and under contracts with the defendant, made, as they and he testified, in good faith, and with no intent to defraud the United States or violate any law; that the gum extracted from the trees was conveyed to a distillery operated by the defendant, and there converted to his own use; that there was an average of one and a half boxes to each tree, making 1000 boxes to about 667 trees, tiie yield of gum from that number of boxes being three barrels per month for a turpentine season of eight months; that the value of the gum delivered at the distillery was from #1.50 to #2.50 per barrel, the average being $2.00 per barrel. There was no evidence of the net value of the gum at any time or place; and, apart from the yield of the boxes and the value of the gum, as above proved, there was no evidence as to the value of the trees when boxed or afterwards.
“The court, in charging the jury, instructed them that the boxing of the trees for the purposes stated was an unlawful cutting of them, and an indictable offense. And the jury were also instructed that the value of the gum, as proved, was a circumstance from which they might infer the value of the trees. To these rulings of the court the defendant, by his counsel, immediately excepted, and now tenders this, his bill of exceptions, which is signed and made a part of the record in this court.”
Tlio following is the verdict in the case;
“We, the jury, 1'md the defendant guilty as charged in the indictment, and assess the damage at thirty-one thousand trees at the rate of ten cents a tree; say three thousand and one hundred dollars.”
The contention in this court is that there was error in the instructions to the jury to the prejudice of tlio plaintiff in error. (1) That boxing trees for turpentine is not cutting trees with intent to export, dispose of, use, or employ the same in any manner whatsoever. (2) That the value of a pine tree cannot ,be inferred from the value of the gum taken therefrom delivered at a distillery.
Section 2461, ¡lev. St., was originally the first section of an act approved March 2, 1881, entitled “An act to provide for the punishment of offenses committed in cutting, destroying, or removing live-oak and other timber or trees reserved for naval purposes.” See 4 Statutes at Large, 472. The first part of the section provides for the offense of cutting or destroying oak, or cedar, or other timber standing or growing or being on lands reserved for supplying timber for the navy. No intent is specified. Provision is next made for the offense of removing such trees or timber from such lands. In this, also, the act of removing constitutes the offense, without reference to any intent. Then follow the provisions
The judgment of the district court will be reversed, a new trial awarded, and the case remanded to the district court, there to be proceeded with according to law.