37 Mo. 225 | Mo. | 1866
delivered the opinion of the court.
This is an indictment against the defendant for pulling down and moving a dwelling-house, alleged to belong to one Joseph Wood. The evidence showed that the defendant pulled down the house and moved it into the town of Neosho, and there put it up and was using it; that Wood’s family had moved out of the house some months before it was moved, and that no person was occupying it at the time..
The defendant then offered to prove that Joseph Wood had left the neighborhood about a year and a half before the house was moved ; that when he went away he left his wife and family in the house; that, several months before the house was moved, Woods’ wife and family left, and left the witness living in the house, and that Woods’ wife told the witness to do what he thought best with the house, and that she (witness) continued to live in the house, and then left it aud told the defendant to move it into town.
This evidence' was excluded by the court. The error consists in excluding this evidence and in misdirecting the jury as to the law. The evidence of this witness ought to have been admitted. It certainly went very far towards disproving malice on the part of defendant. The witness was left in possession by Woods’ family, and the defendant might very innocently suppose that he had the right to control the house; and, so far from acting maliciously, he may have supposed he was doing Woods a favor by removing the house.
The first instruction asked by the defendant properly set out the law on this subject and ought to have been given.
On account of these errors, the judgment will be reversed and the cause remanded for further trial.