United States v. Routledge.

Decision Date06 August 1896
CourtNew Mexico Supreme Court


Appeal from district court, Santa Fé county; before Justice E. P. Seeds.

Joseph Routledge was convicted of the unlawful cutting of timber on public lands of the United States, and appeals. Reversed.

An instruction, in such case, requiring the jury to determine, as a matter of fact, the question of the ownership or nonownership of the tract of land, which the prosecution admitted to be his land, was prejudicial to defendant.

Ed. L. Bartlett, for appellant.

J. B. H. Hemingway, for appellee.


In this case the indictment alleged, in various counts, the unlawful cutting of timber on certain legal subdivisions of the public lands of the United States, being based on section 5388 of the Revised Statutes. The legal subdivisions specified are shown to adjoin or corner with a tract of 160 acres of land belonging to defendant, and it is also shown that he has a mineral entry upon one of said subdivisions. While there is testimony going to show that timber was cut, or caused to be cut, by defendant on these subdivisions, he also produced testimony going to show that the only timber which was cut in that vicinity by his direction was upon his own land, and upon said mineral entry, and that such timber as was cut upon the mineral entry was for mining purposes; the timber cutting being, as shown by the government, for mercantile uses. The questions presented, therefore, to the jury, were: First, whether or not defendant unlawfully cut, or caused to be cut, timber on the subdivisions other than the mineral entry; and, second, if only on the mineral entry, if it was done for mining purposes.

As to the cutting admitted by the defendant to have been done by him on the mineral entry, and upon his own land, and which his proof tended to show was the only cutting done by his direction, the court below instructed as follows: “But you are instructed that there is a mineral entry here made by the defendant, and under this law he was permitted to cut trees for agricultural, mining, or domestic purposes; and unless, by a preponderance of proof, he has shown you that he did cut on this mineral entry for such purposes, you will find him guilty, under the other proof, if, beyond a reasonable doubt, you believe that he is guilty.” “You are instructed, and if you believe from the evidence that the 160 acres in question was the land belonging to the defendant, that he was justified in cutting whatever timber he saw fit from them, but if the timber in question was only cut from that property, or under the section which I have given you from the mineral laws, then you will find him not guilty.” As to the former of these paragraphs, it is to be said that the learned judge was evidently proceeding upon the theory that the defense set up was of extrinsic matter, in the nature of a confession and avoidance, or, in other words, that it was an affirmative defense, and therefore to be proved by a preponderance of evidence. It is readily seen that the...

To continue reading

Request your trial
2 cases
  • Denver & R. G. R. Co. v. United States.
    • United States
    • New Mexico Supreme Court
    • August 16, 1898
    ...principle on which we will determine this case seems, indeed, to have already been decided by this court in the case of U. S. v. Rutledge, 8 N. M. 385, 45 Pac. 883. This was a case where the defendant was convicted of the unlawful cutting of timber upon public land. The evidence showed that......
  • U.S. v. Routledge
    • United States
    • New Mexico Supreme Court
    • August 6, 1896
    ...45 P. 883 8 N.M. 385, 1896 -NMSC- 005 UNITED STATES v. ROUTLEDGE. Supreme Court of New MexicoAugust 6, 1896 ...          Appeal ... from district court, Santa Fé county; before ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT