The respondent was indicted for cutting down and destroying a fence owned by one Palmer, contrary to the provisions of V. S. 5034, which provides, in part, that if a person wilfully and maliciously cuts down, carries away, or destroys a fence, bars, gates, or rails, or injures a sleigh or wheeled vehicle for the conveyance of persons or property, 01 injures or destroys any other goods or chattels, the property of another, which are the subject of larceny, he shall, if the offense is committed openly, and without intended secrecy, be imprisoned not more than six months, or fined not more than $200. At the close of the evidence the respondent moved for a verdict. The motion was overruled, and the respondent excepted. Thereupon,' the respondent requested the court to charge the jury that, unless they found beyond a reasonable doubt that the land on which the fence stood was owned by Palmer, they must acquit the respondent. To the failure of the court to comply with this request, the respondent excepted.
The testimony is not referred to, but it sufficiently appears from the exceptions and the charge of the court, which is made a part of the exceptions, that the respondent and Palmer were the respective owners of adjoining farms; that the fence between the farms was crooked, and a controversy existed as to the true line; that no evidence as to the true line was off ered by the prosecution, and that there was no evidence tending to show that there had ever been any agreement in writing respecting the fences. The prosecution proceeded
While a fence is generally considered a part of the realty upon which it is built, it is not universally so. As between the parties to an agreement made before a fence is built, the material in the fence may be made to retain its character as personalty. 12 Am. & Eng. Enc. Raw (2d Ed.) 1060; Siglin v. Navigation Co., 35 Or. 79, 56 Pac. 1011, 76 Am. St. Rep. 463; Harris v. Scovell, 85 Mich. 32, 48 N.W.173,; Curtis
The respondent’s offer to show what he said to' one McDonald about the true boundary line between the farms was properly excluded. The prosecution offered no> evidence of the true boundary line, but relied for conviction upon evidence tending to show that the fence was placed by Palmer where it was at the time it was destroyed by the respondent, with the consent of the respondent. Upon this issue, what
The respondent offered in evidence the original plan of lots in the town of Washington and the original field book of the surveys of the lots, for the purpose of showing the variations between the plan and field book in the length of the Palmer farm. This offer was excluded, and the respondent excepted. This evidence was not material to- any issue in the case, anid was properly excluded. The prosecution did not claim, nor did it introduce evidence tending to> show, that the fence stood upon the true boundary line. As before stated, conviction of the respondent was, by the evidence of the prosecution, made to depend upon whether the respondent had so far consented to' the placing of the fence where it stood when cut down by the respondent, that it remained the property of Palmer, and upon this issue the rejected evidence was immaterial.
The prosecution called Palmer as a witness, and asked him who occupied the land on which the fence was. The respondent objected to this question. The objection was overruled, and the respondent excepted. It does not appear what answer was given, nor does it appear that the question was answered; therefore, error does not appear. It was incumbent upon the respondent to show by his exceptions that the question was answered, and what answer was given. Without such showing, the court has no means of knowing whether the ruling was prejudicial to; the respondent. Carpenter v. Corinth, 58 Vt. 214, 2 Atl. 170.
The respondent called one Emery, and asked him what it would cost to rebuild the fence, and what damage was caused by its destruction. These questions were excluded, and the respondent excepted. It does not appear what the answer of the witness would have beeni, nor does it appear that there was
No exceptions were taken to the charge of the court as given, but the respondent excepted to the refusal of the court to comply with his second request, namely: “If the respondent cut down the fence on land formerly occupied by him, under advice of counsel, and honestly believed he had a right to do so, then he was not doing any wilful and malicious injury, and it is the duty of the jury to acquit him.” The court instructed the jury on this point as follows: “If the respondent went to reputable lawyers, and stated the case fairly, just as he understood and knew the facts to be, — all the material facts as he understood them, — he would have a right to rely, if he acted honestly and in good faith, upon what counsel told him ; but he could not go and make a partial disclosure of the facts, and get an opinion that would be a protection to him. Whether he received the advice he says he did, is a material question, as bearing on his good faith;-because, as I have said before, you must find that he did not act in good faith, but acted maliciously.” The court also instructed the jury that “maliciously” meant “out of malice,” “with an evil motive,” in distinction from “honesty” and “good faith.” In view of the evidence, this instruction was all the respondent was entitled to upon the subject of his request. There was testimony given by the respondent himself, which tended to show that in cutting down the fence he acted upon the advice of counsel, and that he obtained the advice by withholding from counsel material facts within his knowledge.
Judgment that there is no error, and that the respondent-take nothing by 1 his exceptions. Let execution of the sentence be done.