Wise v. Commonwealth

• Court: Virginia Supreme Court
• Writing for the Court: KEITH
• Citation: Wise v. Commonwealth, 98 Va. 837, 36 S.E. 479 (1900)
• Decision Date: 21 June 1900
• Parties: WISE. v. COMMONWEALTH.

98 Va. 837

36 S.E. 479

WISE.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 21, 1900.

CRIMINAL LAW—DESTROYING FENCE—PROOF OF CLAIM—VERBAL PURCHASE —BONA FIDES.

1. Under Code, § 3729, providing that if any person shall unlawfully, but not feloniously, destroy or injure property not his own, he shall be subject to a fine, where defendant was accused of unlawfully tearing down the fence of the prosecutor, evidence that, according to a survey made on the prior transfer of the farm now owned by the defendant, the boundary line was found at one point to extend slightly onto the land of the prosecutor, and the grantee in such transfer took such title to the disputed land as the grantor possessed, which the grantee subsequently conveyed to the defendant, was admissible to show that defendant acted in good faith.

2. Where defendant was accused of unlawfully tearing down the fence of the prosecutor, to refuse an instruction that if the defendant tore down the fence under a claim of right, believing it to be his own, then the jury should find for the defendant, was erroneous.

Error to Washington county court.

John Wise was unlawfully convicted of tearing down a fence, and he brings error. Reversed.

J. J. Stuart, for plaintiff in error.

A. J. Montague, Atty. Gen., for the Commonwealth.

KEITH, P. This is a writ of error to a judgment of the county court of Washington county, sentencing Wise to pay a fine of five dollars for unlawfully tearing down and leaving open a fence of one H. A. Mann.

Section 3729 of the Code provides: "If any person unlawfully, but not feloniously, take and carry away, or destroy, deface, or injure any property, real or personal, not his own, * * * he shall be fined not less than five nor more than five hundred dollars."

In support of his plea of "not guilty, " prisoner offered to show that the land upon which he resided had formerly belonged to White, who sold to Counts. When a view was made with a view to the making of a deed to Counts by White, the lines of the survey were run at one point upon, land claimed by H. A. Mann, the prosecutor in this case. He making objection, White said to Counts that he would not convey to him any part of the disputed land, not because he meant to abandon any right he had, but because he did not consider the subject worthy of controversy, but at the same time agreed verbally with Counts to transfer to him any claim he might have to the parcel of land in dispute. Counts sold to Lilly, and Lilly to...