5 Gratt. 657 | General Court of Virginia | 1848
delivered the opinion of the Court:
A majority of the Court is of opinion, that the information in this case charges but one offence, either the offence of removing the fence, or the offence of injuring the crop growing on the land by removal of the fence. And being of opinion, if the defendant removed the fence under a claim of right, believing it to be his own, and that he had a bona fide right to it, that he committed no offence by the removal of the said fence; and that therefore the County Court erred in refusing to give the fourth instruction asked for on the trial by the defendant. The Court doth therefore reverse the judgment, and doth remand the case to the Circuit Court for the county of Chesterfield, with instructions to that Court to reverse the judgment of the County Court, and to remand the case to the said County Court for a new trial to be had therein, with instructions to the said Court to give, on the said new trial, the said fourth instruction, if the same shall be again asked for.
Judges Scott and Field dissent from the judgment, being of opinion that the information charges two dis
Lomax, J. not being sustained by the rest of the Court in his objection to the information itself as being bad, concurs in the judgment of Judges Smith and Leigh.
