Werner v. StateWerner v. State
- Reporters:
- , ,
- Before:
- Cassoday
. The plaintiff in error, after having been found guilty in a justice’s court and on appeal to the circuit court, was retried by a jury and found guilty “ as charged1 in the complaint,” of having, with others, October 29, 1893, at the village of Brillion in Calumet county, “with force and arms, wilfully, maliciously, and wantonly,” torn down, injured, and destroyed a building of the value of $50, situated on the lands therein described, then and there owned and possessed by William V. McMullen and Charles Brass, against the peace and dignity of the state of Wisconsin; and thereupon the sentence of the court was that he should be punished by the payment of a fine of $5 and costs of prosecution, taxed at $211.44, and that he stand committed to the county jail until such fine and costs should be paid, provided, however, that such imprisonment should not exceed *269twenty days. Thereupon the requisite steps were taken .staying proceedings pending this writ of error.
There is evidence tending to prove that, for a number of years prior to the time in question, the land upon which the building was situated was open and uninclosed, and the public had been allowed to use the same indiscriminately for the purpose of hauling freight across it and storing freight thereon; that the father of the plaintiff in error was the •owner and in the possession of a store and other buildings ■adjoining the premises, and that some of such buildings projected over his line onto the land in question; that Edward Dascom, claiming to be the owner of the land in question, sold and conveyed the same to McMullen and Brass, October 17, 1893; that on Saturday, October 28, 1893, Mc-Mullen and Brass constructed the building in question; that on the next day the plaintiff in error, without their knowledge or consent, took part in tearing down the same; and hence the prosecution.
Counsel has assigned twenty-seven errors. It is admitted, however, that the facts in the case are few and simple.
Upon those questions the court charged the jury, among-other things, as follows: “ Where, as here, the controversy is over a question of disputed title or disputed ownership or-possession of lands, it becomes a question of fact for the jury to determine whether or not there was malice or ill will in the act which was performed, and this you must determine^ *271from all the evidence which has been placed before yon in regard to the matter. . . . If yon find from the evidence’ that the defendants in good faith entered on the premises, and tore down the building, actually believing that Peter Werner was the owner of said land and had been in possession of the same for a series of years, and they had reasonable ground for so believing, and that their only motive was to defend the possession of said Werner, then you should acquit the defendants. If, on the other hand, you find that they had no reasonable grounds to believe that Peter Wer-ner was the owner of said land and in the possession of the same, then you should find them guilty. Row, it is for you to determine from all the facts in the case whether these defendants had any reasonable ground for believing that Peter Werner was the owner of this land. It is for you to. determine whether or not these defendants honestly believed that Peter Werner was the owner of the land, and removed this building when acting in such honest belief, for the purpose of protecting the possession of Peter Werner to these lands. If you find that they did have such honest belief, or- [and] had good reason for so believing, and removed this-building only for the purpose of protecting that possession,, ‘as I have said, then you should acquit the defendants. If you find that, on the other hand, they did not have such honest belief that Peter Werner did have the possession of the lands, but that they tore down the building as a matter of spite or ill will towards McMullen and Bruss, because they had ascertained that they had purchased the title of these lands and had become the owners of them, then you should convict them. ... On the part of the defendants, I am requested to instruct you, and do instruct you, as. follows: ‘ If you find that the acts complained of were committed by the defendants in an honest belief that the defendants, or either of them, had the right to take down and. *272remove the building, and that he did so only lor the purpose of protecting the rights or supposed rights of Peter Werner in these premises, and not from spite, ill will, hostility, or malice towards McMullen and Brass, or either of them, personally, you must find the defendants not guilty.’ ”
The offense prescribed by the statute, as indicated, consisted in “wilfully, maliciously, or wantonly” tearing down, mutilating, defacing, or injuring any building “ standing or being upon the land of another, or held in trust.” S. & B. Ann. Stats, sec. 4441. True, the complaint is that he “ wil-fully, maliciously, and wantonly ” tore down the building, etc. Nevertheless, we are constrained to hold that, if the jury were justified in finding that he was guilty either of wilfully or maliciously or wantonly tearing down the building, then the verdict is supported by the evidence. “Wantonly,” as thus used, may be defined as the reckless disregard of the lawful rights of the owner of the building,— a heedlessness of the necessary results of the act complained of. Cobb v. Bennett, 75 Pa. St. 326; Stucke v. M. & M. R. Co. 9 Wis. 202; Lockwood v. Belle City St. R. Co. 92 Wis. 110. Such being the statute and the nature of the charge, it is unnecessary to consider decision‘s under statutes which prescribe punishment merely for wilful and malicious conduct. It follows that there was no error in the portions of. the charge quoted, nor in refusing the motion for a nonsuit, nor to discharge the plaintiff in error.
We find no substantial error in the record.
By the Court.— The judgment of the circuit court is affirmed.