State vs. Charles and John Denton.

on file in this court, is not a perfect transcript of the record, as the same appears in the Circuit Court of Blount County. The suggestion is, that there is not of record in the Circuit Court of Blount County, a perfect transcript of the record in the Circuit Court of Monroe County.

But it has not been suggested, that the apparent defect in the record heretofore mentioned, can be cured even by a transcript from the Circuit Court of Monroe County. In fact, it appears from a transcript presented in support of the application, that the transcript already on file in this court, contains a perfect transcript of the order of the Circuit Court of Monroe County, directing that the venue be changed to the County of Blount.

Therefore, and inasmuch as the objection already pointed out is fatal, the application for a certiorari will be refused.

The refusal of the Circuit Court of Blount County to pronounce judgment upon the verdict, was certainly

correct.

The order of the Circuit Court of Monroe County, directing that the venue be changed, will be vacated; all the proceedings of the Circuit Court of Blount County, will be set aside and declared void, and the defendants remanded to the County of Monroe, where the cause will be proceeded with, as though no such order had ever been made.

Jeremiah Dotson us. The State.

JEREMIAH DOTSON vs. THE STATE.

1. TRESPASS ON LAND. Indictment for trespass on land, not a mode to determine tille. Section 4652, and sub-section 7 of the Code, were not intended to settle the title to real estate, at the expense of the State, but to protect the actual possession of real estate against unlawful and forcible invasion, and to remove occasion for acts of violence and breaches of the peace.

2. SAME. Same. The trespass must be on land in the possession of another. To support an indictment under the statute above recited, there must have been, by the express terms of the statute, a trespass; such wrongful invasion of the possession of another, as would enable the party in possession, to maintain an action of trespass for the injury. The possession invaded must be the possession of some person other than the defendant.

3. SAME.

Same. Evidence to excuse a trespass. Title. Something more than a technical trespass; it must be willfully and knowingly. Any facts which would constitute a defense to an action of trespass, as title in the defendant, or in those under whom he claims, would constitute a defense to the indictment. But the actual and exclusive possession of the prosecutor would be prima facie evidence of the title in him. To authorize a prosecution of this nature, there must be something more than a mere technical trespass upon the land. The trespass must be committed willfully and knowingly.

4. SAME. Same.

If the defendant in this case committed the trespass complained of under color of title, and a bona fide claim of right to do the act, and in good faith believed that he had a valid title to the premises and right of possession, he is not guilty of the misdemeanor charged in the indictment.

FROM KNOX.

This cause was tried at the

Term, 1869, of

the County Court of Knox County, when there was a verdict and judgment against the defendant, and an

Jeremiah Dotson vs. The State.

appeal by him to this Court. presiding.

Judge C. W. JONES,

WILLIAM A. HENDERSON and BEN. J. OWEN, for plaintiff in error.

THOS. H. COLDWELL, Attorney-general, for the State.

GEORGE ANDREWS, J., delivered the opinion of the

Court.

The plaintiff in error was indicted in the County Court of Knox County, for a misdemeanor, in cutting down, with intent to convert to his own use, valuable timber on the land of the prosecutor, D. F. DeArmond.

No objection was taken in the court below, to the sufficiency of the indictment.

This indictment is founded on clause 7 of section 4652 of the Code, which declares that it shall be a misdemeanor "to trespass on the lands of another by cutting down, or in any other manner, destroying, valuable timber thereon, exceeding fifty cents in value, with a view to convert the same to his own use, unless the offender be traveling or moving along any road, and by accident or otherwise, require the same for his own immediate use."

Upon the trial, the prosecutor, De Armond, testified that he had been in possession of the land claiming title, seven or eight years; that the timber cut was in the open woods; but that witness had some inclosed

Jeremiah Dotson vs. The State.

fields on the same tract, and had used timber off of the tract, but did not remember that he ever cut any off this identical place; that defendant had been claiming this land for several years, and was living in a house near the tract, but not upon it, and that defendant had never had possession of this land.

The defendant gave in evidence, a grant to him from the State of Tennessee, covering the locus in quo, and proved that he resided upon, and claimed title to the tract covered by the grant. The State introduced evidence for the purpose of proving the grant to defendant to be a forgery.

The County Judge, in his instructions to the jury, recited the provisions of sub-section 7, above set forth, and instructed them that, if the defendant had trespassed on the land of another, as charged in this indictment, they should find him guilty. No further instruction or explanation was given as to what constitutes the offense. The defendant was convicted, and has appealed in error to this Court.

This statute is not intended to constitute our Criminal Courts, tribunals for the trial of ejectment suits, at the expense of the State. It is not intended to settle the title to real estate, but is enacted in pursuance of the policy apparent in our statutes of forcible entry and detainer, and other statutes, to protect the actual possession of real estate against unlawful and forcible invasion, and to remove occasion for acts of violence and breach of the peace.

To support an indictment under the statute above recited, there must have been by the express terms of

Jeremiah Dotson vs. The State.

the statute, a trespass; such wrongful invasion of the possession of another, as would enable the party in possession to maintain the action of trespass for the injury. The possession invaded must be the possession of some other person than the defendant.

As the essence of the offense lies in the trespass, any facts which would constitute a defense to the action of trespass, as title in the defendant, or in those under whom he claims, would constitute a defense to the indictment. But the actual and exclusive possession of the prosecutor, would be prima facie evidence of the title in him.

But construing this section with reference to the obvious intent of the Legislature, and in connection with the other sections and sub-sections of the chapter in which it is found, we think that, to authorize a prosecution of this nature, there must be something more than a mere technical trespass upon the land. The trespass must be committed willfully and knowingly.

The evident design of the Legislature was, to provide in the section of the Code, of which the clause under consideration is a part, for the punishment of a class of willful or malicious trespasses committed upon public or or private property. The section contains eighteen clauses, each specifying a distinct offense, and embraces injuries to public buildings, religious edifices, school houses, springs and wells, trees, growing crops, fences, mills, boats, etc.

Most of these clauses provide for cases in which the offense is committed "wantonly," "knowingly," "maliciously," "willfully," etc.; some of these words being