Trespass on land.

"That on or about the 20th day of December, A. D. 1867, at the county of Cass, and State of Indiana, one John Pottmeyer did then and there unlawfully cut, saw, and remove from land belonging to one Daniel P. Baldwin, in said county, one hundred cubic feet of ice, of the value of ten dollars, being then and there the property of the said Daniel P. Baldwin, without a license so to do from the said Daniel P. Baldwin, or any other competent authority," etc. 30 Ind. 287.

Allegation as to want of license.-In an information for trespass to lands, it was alleged that the act of trespass was done "without the consent of A," the owner of the land, or his agent." Held, that the information sufficiently alleged that the act was done "without a license from competent authority." 26 Ind. 198.

Damage to owner need not be alleged.—In a prosecution for cutting a tree upon the land of another, the value of the tree constitutes the basis upon which the penalty is estimated, and hence the damage to the owner need not be alleged in the information. 16 Ind. 230.

An indictment charging that the defendant entered, etc., and then and there took and removed, etc., a portion of a poplar tree, which was of the value of, etc., is not bad for omitting the words "then and there" before the words "of the value." 3 Ind. 529.

"Cut a timber."-Under the statute prohibiting the cutting down of timber trees, it is not sufficient for the indictment to allege that the accused "cut a timber," etc., omitting the word "down." 8 Blackf. 299.

Question of title.-A criminal prosecution is not the proper mode of trying title to real estate. A person without color of title could not defeat such prosecution simply by claiming title; but where he has a paper title, apparently valid upon its face, and claims in good faith to be the owner, and is in possession, such a prosecution will not lie, although his title is not good. 13 Ind. 375. See 10 Ind. 492; 45 Id. 388.

A person is not liable to a criminal prosecution for destroying timber on lands of which he holds possession by virtue of a fraudulent contract of purchase. 10 Ind. 492.

Owner of reversion or remainder.-A person who owns the reversion or remainder in land, if there is a suit pending between him and another, involving a question of waste or improvements, has a right to go upon the premises in a peaceable manner with witnesses, for the purpose of examining the same. 3 Ind. 387.

Carrying off products of the soil.

SEC. 11. CARRYING OFF PRODUCTS OF THE SOIL.

SEC. 76. Any person who shall unlawfully go upon the lands of another, and any person who shall unlawfully pull off, or pull off and carry away, any corn growing on the stalk, or any fruit on the tree, bush, or plant, pumpkin or melon on the vine, or other annual product attached to the realty, or growing in the soil, of the value of ten cents, or upward, the property of another, shall be fined in any sum not exceeding fifty dollars, to which may be added imprisonment in the county jail for any period not exceeding six months; and any person concerned in the commission of any such offense may be compelled to testify against the others, but in such case shall be exempt from punishment himself for such offense. 2 R. S. 481.

CHARGE.

in the year

That A. B., on the day of at said county, upon a certain tract of land of one C. D., in said county, to wit, the northwest quarter of the southwest quarter of section of township, north of range east, unlawfully pulled off and carried away twenty-five ears of corn, then and there growing upon the stalk, commonly called roasting-ears the property of the said C. D., and then and there of the value of twenty-five cents. Bicknell's Crim. Pr. 420.

Entry on land.-Section 76 of the act defining misdemeanors, as amended by the act of February 14, 1865 (2 R. S. 481), does not make a simple entry upon the land of another, without license, an indictable offense. 32 Ind. 34. Bicknell's Crim. Pr. 419.

It makes that a misdemeanor which, at common law, was only a trespass. 11 Ind. 46.

License-Revocation.-The defendant in a prosecution for entering on land and carrying away products of the soil, had sold hay to the prosecuting witness on condition that he might enter, in the fall, into her corn-field, and gather and remove a sufficient amount of corn to pay for the hay. He entered to gather the corn, and she forbade him to gather. He proceeded to gather a quantity of a value less than that of the hay. The court, on the trial, in

Desecrating cemetery.

structed the jury that "a license may be granted by parol, and as long as a party is acting under such license he will not be a trespasser, but such license may be revoked at any time. If the defendant entered upon the lands of the prosecuting witness, under a parol license, and before he gathered any corn she forbade his gathering, and the defendant, after being forbidden, did gather and remove the said corn from the premises without the consent of the prosecuting witness, the act was unlawful, and the defendant was liable." Held, that the charge was erroneous, as a license can not be revoked where it is coupled with an interest and supported by a valid consideration. 39 Ind. 267.

SEC. 12. DESECRATING CEMETERY.

SEC. 71. If any person shall willfully disfigure or injure any tombstone, monument, fence, tree, or shrubbery, around or within any cemetery, or shall use such cemetery for any other purpose than a burying ground, he shall be fined not exceeding five hundred dollars, or imprisoned not exceeding six months. 2 R. S. 480.

CHARGE.

1. Injuring tombstone.

That A. B., on the day of -, in the year

at said county, unlawfully and willfully disfigured and injured a certain tombstone and monument in the public cemetery of the city of New Albany, in said county, by breaking off part of said tombstone, and by defacing and erasing certain inscriptions thereon, then and there cut and engraved. Bicknell's Crim. Pr. 418.

2. Using cemetery for illegal purpose.

in the year

That A. B., on the day of at said county, unlawfully and wilfully used a certain cemetery and private burying ground, then and there being, and commonly called and known as the burying place of J. S., for another purpose than a burying ground, to-wit, as a place of deposit for dirt and rubbish, and then and there unlawfully and willfully hauled and caused to be hauled to the said cemetery and deposited therein divers, to-wit, one hundred, cart loads of dirt and rubbish. Ibid.

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OFFENSES AGAINST PROPERTY.

Removing land marks, etc.

101

Meaning of "cemetery."-The word cemetery, in the statute, means a burying ground, duly established, whether public or private. 9 Ind. 172.

Where a person has on his farm a burying place not established under the statutes, and sells the farm without reserving the burying place, the purchaser is not bound to respect it as such. Ibid. It is held that this statute does not apply to any burial grounds except those formally established as such pursuant to the statute. 1 R. S. 840, secs. 17-21. Ibid.

If it be a public burying ground, proof thereof may be inade by the original deed to the county commissioners, or a certified copy of the record, or by evidence that it has been used by the public as a burying ground long enough to warrant a presumption of dedication to the public for that use; or, if it be a private burying ground, prove it duly established by the plat from the recorder's office, or a certified copy thereof. Bicknell's Crim. Pr. 419.

SEC. 13. REMOVING LAND MARKS, ETC.

SEC. 33. If any person shall mischievously remove any monument erected for the purpose of designating the corner or any other point in the boundary of any tract of land, or shall maliciously or mischievously deface or alter the mark upon any monument, made for the purpose of designating any point, course, or line in the boundary of any tract of land, or shall willfully cut down or remove any monument upon which such mark shall be made, with the intent to destroy such mark, such person shall be punished by imprisonment in the county jail not exceeding six months, or by fine not exceeding two hundred dollars. 2 R. S. 471.

CHARGES.

-, in the year

at said

1. Removing a monument. That A. B., on the day of county, unlawfully and mischievously removed a certain stone land mark and monument, then and there erected for the purpose of designating the northwest corner or a certain tract of land in said county, to wit, the north half of the southeast quarter of section east; said tract of land

of town

north of range

Removing land marks, etc.

being then and there the property of one C. D. Bicknell's Crim.

Pr. 417.

2. Defacing and altering mark on monument.

day of

in the year

at said

That A. B., on the county, unlawfully, maliciously, and mischievously, defaced and altered the mark upon a certain stone land mark and monument, with intent then and there to destroy said mark, which said mark was then and there made for the purpose of designating a point in the boundary of a certain tract of land in said county, to wit, the south half of the northeast quarter of section of town north of range -, east, the property of one C. D., by then and there unlawfully, maliciously, and mischievously, and with the intent aforesaid, cutting out a part of the letters, C. D., which were then and there engraved and marked, as boundary marks, upon said stone land mark and monument. Ibid.

3. Cutting down and removing a tree serving as a monument.

day of

That A. B., on the in the year — at said county, unlawfully and willfully, and with intent to destroy the boundary marks thereon, cut down and removed a certain poplar tree, which was a monument in the north line of the north half of the southeast quarter of section north of range east, in said county, the property of one C. D., upon which monument were then and there cut and marked the boundary marks and letters C. D. Ibid, 418.

of town

FORM AND CONTENTS.

An indictment charged that the defendant, on, etc., "did them and there unlawfully, maliciously, and mischievously, remove a certain stone land mark and monument, then and there erected for the purpose of designating the southwest corner of a certain tract of land in said county, to wit," describing the land. Held, that the indictment was sufficient. Under the first division of section 33, it is not necessary to charge the intent with which the monument was removed. 45 Ind. 468.

EVIDENCE.

Monument-Survey.-Where a monument has been set up as a landmark, not by the proper officer of the government of the United States, at the time of the government surveys, or by authority of a surveyor in accordance with the requirements of the