State v. Herold, 9 Kan. 194

State v. Herold

9 Kan. 194 | Kan. | 1872

The opinion of the court was delivered by

Valentine, J.:

This was a prosecution for a criminal offense—a misdemeanor—under ch. 113, Gen. Stat., 1095, for cutting down and carrying away timber from land belonging to the United States. The action- was commenced and tried before a' justice of the peace, thence appealed to the district court, there again tried, and thence appealed to this court.

There is no complaint to be found in the record of this case, but the record shows that there was one filed with the *199justice, and that there was also an amended complaint filed in the district court; but the clerk certifies that both were abstracted from his office. No point however has been made by either side on account of the complaint being missing, and both sides agree as to what it contained.

The first question is, whether the United States is a person within the meaning of said chapter. We think it is. Gen, Stat., 999; §1, subdivision 13. Section 314 of the act relating to crimes and punishments (Gen. Stat., 384,) is probably, as defendant claims, not applicable to this case; but it is not so certain, as defendant supposes, that § 321 of the criminal code is not applicable. It is true that the offense charged in this case is a misdemeanor, of which justices of the peace as well as the district courts, have original jurisdiction; (Gen. Stat., 1096, §1; Laws of 1869, ch. 61, p. 147;) and that this case was tried before a justice of the peace. But justices of the peace in the trial of misdemeanors are governed by the code of criminal procedure as well as the district courts except where it is otherwise provided by statute.' (Gen. Stat., 882, § 20.) Hence it would seem to follow that said § 321 of the criminal code is applicable to this case. Under either of said sections—§1, p. 999, §314, p. 384, §'321, p. 871, Gen. Stat.—the United States is a person. The question whether the Sac and Fox Reservation is a person is not raised by the record of this case; nor did the court below charge the jury, as the defendant claims, that the Sac and Fox Reservation was a person.

We agree with counsel for defendant, that the act of cutting down and carrying away timber, rails, etc., from the land of another, must be a wrongful or illegal act, or it cannot be prosecuted either civilly or criminally under said chapter 113. It must be a trespass within the meaning of the title of said chapter, and committed without authority from the owner, in order to be prosecuted, although it need not be technically a common-law trespass. Fitzpatrick v. Gebhart, 7 Kas., 35. But the record does not show that this principle was violated in the trial of the cause below. The defendant *200claims that it was violated by the instructions of the court to the jury. But as none of the evidence is brought to this court we cannot tell whether it was or not, or whether the court erred in any other respect in its instructions to the jury. It is probably true, as is claimed by the defendant, that the court charged the jury that if the defendant cut down the trees or carried away the rails, etc., as charged in the complaint, that he was guilty, omitting to state that the act must be done without authority from the owner, or without any right on the part of the defendant. Now if there was any conflict of evidence as to whether the defendant had any right to take the timber or rails, or if there was any doubt as to what the evidence proved upon this subject, then the question .of what the finding should be was one of fact, and belonged exclusively to the jury; but if the evidence was all one way, and if there was no doubt as to what it proved, all tending to show that the defendant had no right to take the timber or rails, then the question was properly one of law for the court, and the court had the right to tell the jury that under the evidence the defendant had no right to take timber or rails from said land. There is nothing in the record that shows that there was any controversy upon this subject. There is nothing to show that the defendant made any claim, or pretense even, that he had a right to cut timber, etc., on government land. And where a party brings a case to the supreme court, and fails to bring any of the evidence that was introduced on the trial below, it must be presumed that the evidence was all against him, and that it sufficiently proved all the facts found against him. We do not wish, to decide that where the evidence is all one way, and unquestionably proves the fact for which it is introduced, that the court is bound to tell the jury that the fact is proved, and instruct them to find accordingly; but we do decide that in such a case the court may tell the jury so, and so instruct them without committing error.

The instruction that “ Proof that the alleged trespass was committed on the Sac and Fox Diminished Reservation would *201be proof that it was committed on the property of the United States,” was not erroneous. The court, as we think, merely stated that such proof would be legal proof, that is, some proof upon the subject, a circumstance tending to prove the ownership of the laud upon which the alleged trespass was committed; but the court did not say that such proof would be conclusive, or even prima faeie proof, upon the subject. The court did not say that it would be sufficient of itself to prove the ownership of the land. Under the treaty with the Sacs and Foxes of February 1st 1867—proclaimed October 14th, 1868, 15 U. S. Stat. at Large, 495—the United States became the owner of all of said diminished reserve, and was of course the owner of the same at the time this alleged trespass was committed, which was sometime between November 16th 1868 and November 16th 1870, unless the government transferred the title to some other person. Whether it devolved upon the state to show that the government had not parted with its title, or upon the defendant to show that it had, is not a question in this case. We suppose it is hardly necessary for us to say that said treaty is a public law, of which the courts must take judicial notice. The judgment of the court below is affirmed.

All the Justices concurring.