State v. Paul

Jan 21, 1891
Reporters:
,
Before:
Given
GiveN, J.

1. trespass : topuony?15 I. It will be observed that the two forty-acre tracts from which it is charged trees were cut a,1(l taken are in different sections, and not contiguous. Appellant claims that cutting trees on each constitutes separate offenses, and, therefore, the indictment charges two offenses. If cutting the trees was but one transaction, then it constitutes but one offense. That it was upon different tracts of land does not make it separate offenses, any more than the cutting of each tree was a separate offense. If, in point of time and circumstances, the cutting was done as a single act, then it is but one offense. The charge, fairly construed, is that, at a single time and as a single act, the defendant cut down trees growing on the land described.

2. The same. II. Section 3983 of the Code provides: “If any person commit any trespass by cutting down or destroying any timber or wood standing or growing on the land of another, or by carrying away timber or wood being on such land, * * * he shall be punished,” etc. Under this statute the offense may consist in wilfully cutting, or wilfully destroying or wilfully carrying away, but it does not follow that a single trespass may not be committed by cutting, destroying and carrying away. To cut without destroying or carrying away is an offense; so to destroy without carrying away, or to carry away without cutting. It is none the less a single offense if, as one transaction, the accused both cut and carried away, as is charged in this indictment.

*599’ ownership of III. Appellant contends that the indictment fails to give the names of the owners of the land on which the trespass is alleged to have been committed. The lands are described as belonging to the estate and heirs of Madison Young, deceased. It is argued that, as it does not appear whether Madison Young died testate or not, we cannot say but that one tract belonged to one heir, another to another, and so on, each tract having a separate owner. No such inference is warranted. The statement is that it belongs to the estate and heirs, which precludes the inference of separate ownership.

We do not discover any errors in the proceedings of the district court, and its judgment is, therefore, AFFIRMED.