BrowniNG, Judge,
dissenting:
I respectfully dissent from the decision of the Court in this case, and would affirm the judgment of the Circuit Court of Doddridge County.
The only other case involving criminal trespass that has been decided by this Court is State v. Andrews, 75 W. Va. 233, 85 S. E.'IOIO, briefly discussed in the Court’s opinion. *373The rule laid down therein is one upon which I would affirm the conviction: “One can not be convicted for a trespass where the act complained of was done under a bona, fide claim of right; but the question whether the act was so done is ordinarily one for the jury.” An examination of the facts in the Andrews case shows that the conviction was affirmed by this Court, although the defendant maintained that he had a contractual right to go upon the property and remove a building. The jury decided that he had no such right, although he maintained that he did, which I believe to be the exact factual situation in the present case. The defendant here claimed the privilege of going upon the prosecuting witness’s land, as the result of securing an assignment of a leasehold estate, which the record clearly shows had been abandoned several years previously. The defendant could secure by assignment no better right than his assignor possessed. This defendant was informed by the owner of the land upon which he trespassed that he had no right to go upon it; the defendant thereafter removed, a “no trespass” sign, and invaded the premises. He continued to destroy the real property of the prosecuting witness after a so-called “stoppage notice” had been served upon him, and did not desist until after he had been arrested upon the warrant charging criminal trespass. Certainly upon those facts, it became a question for the jury to determine whether the act complained of was done under a bona fide claim of right. The jury is not bound to accept the explanation offered by the defendant, and neither should this Court.
It is my opinion that the rule established by the North Carolina cases, two of which are cited in the Court’s opinion, are consistent with instructions given by the court in this case. In State v. Durham, 121 N. C. 546, 28 S. E. 22, the second syllabus point is as follows: “Testimony that defendant believed that he had a right to enter must be supplemented by facts showing a reasonable ground for such belief.”
Code, 61-3-30, under which this defendant was tried, provides that if any person unlawfully destroys or dfe-*374faces any property, real or personal, “not his own”, he shall be guilty of a misdemeanor, and under the provisions of that section, it is necessary for evidence to be introduced, and for instructions to be given, upon the question of the ownership of the land alleged to have been invaded. Title to the realty is not thereby determined, but such procedure is necessary to ascertain whether the defendant trespassed upon land “not his own”. Therefore, I think it was not reversible error for the court to give Instructions Nos. 11 and 13, and believe that they correctly state the law applicable to this offense.
Judge Haymond joins with me in this dissent.