People v. Ripley , 35 N.Y. Crim. 324 ( 1916 )

By the Presiding Justice (orally):

I think the defendants are clearly entitled to acquittal on two grounds:

First: To maintain the prosecution it must be shown beyond reasonable doubt that the complainant at the time mentioned was the owner of the freehold affected. On the contrary, as it seems to me, the evidence submitted to locate the tract described in the complainant’s deeds is inconclusive, and the defendant’s claim of title is at least fortified by recent continued possession.

Second: To incur the condemnation of the statute the defendants must have intended to do the act forbidden, that is, to sever substance from the freehold of another. If they supposed the title was in themselves, they could not have had any intent to trespass on the lands of another, in any act that they may have done. Thus in the greatest strictness of interpretation against the defendants, the word willfully includes the element of conscious violation of the right of another. Moreover, upon reason and authority, the offense defined by the statute is inconsistent with innocence of wrongful intent. The Standard Dictionary defines the word luillfully:

“ In law, designedly as opposed to inadvertently: in a penal statute, purposely, with evil intent, maliciously.”

The Century Dictionary and Cyclopedia defines the word willfully under ISTo. 3:

“ In law, willfully is sometimes interpreted to mean —

“A. By an act or omission done of purpose with intent to bring about a certain result: or

“ B. "With implication of evil intent or legal malice, or with absence of reasonable ground for believing the act in question to be lawful.”

Under these definitions from lexicographers, it appears that common usage is in support of the definition suggested for the word willfully. The cases decided in this State are to the like effect. It seems sufficient to refer to McMorris v. Howell (89 App. Div. 212), which was an action for malicious prosecution. The Appellate Division in the Second Department, Justice Woodward writing the opinion, affirmed a judgment in favor of the plaintiff against a defendant who had prosecuted under this statute. The plaintiff had removed a padlock to enter and! to make repairs to a building under direction of one claiming title, and the defendant caused his arrest for violation of Penal Code (§ 640, subd. 3 [new Penal Law, § 1425, subd. 3]). The court declared that the definition of willfully in Wass v. Stephens (128 N. Y. 123) applies to this statute now being considered in the case before us. See also People v. Bates (70 Hun, 584).

Willfully means more than an intentional act which is also-wrong. (38 Cyc. 1181 — Trespass.)

I think the defendants were acting, as they believed, within their rights; and hence they are not guilty as now charged at the bar of this court.