Barnett v. State , 124 Miss. 884 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

The appellant was convicted in the court below on an affidavit charging that be “did unlawfully and wilfully cut and haul fuel wood, and also wood for bis own use, after being ordered to stay off by affiant.” Where or from what tbe wood was cut is not stated.

According to tbe evidence, the appellant cut and removed several small trees and a few old cross-ties from land of which be bad been in possession for about thirty-seven years with tbe permission of bis brother, who seems to have claimed to own tbe land. Tbe cross-ties bad been left on tbe land when a logging road thereon was removed. A man by tbe name of Hardee, claims to be tbe owner of the land by purchase from a man by tbe name of Bussell, though no deed to him thereto was introduced in evidence.

Tbe contention of tbe attorney-general is that tbe conviction can be upheld under either section 1379 or section 1389, Code of 1906 (Hemingway’s Code, section 1119 or section 1132).

Pretermitting any discussion of the several other questions presented by this record, it will be sufficient to say that tbe evidence brings tbe case within neither of the sections of the Code relied on by tbe attorney-general, for tbe evidence does not disclose that any of tbe kind of trees described in section 1379 were cut from the land by tbe appellant, and negatives any wilful or malicious intent on tbe part of tbe appellant in cutting the trees, as is required by section 1389.

Tbe contention of tbe attorney-general that section 1379 prohibits tbe cutting of any timber upon land belonging to another is without merit, for tbe word “timber” therein must be read in connection with tbe words preceding it, and, when so read, tbe statute prohibits tbe cutting of any. “cypress timber, pine timber,” etc.

Beversed and judgment here for appellant.

Reversed.