Champion v. State

(orally).

A petition in error was filed in this court to reverse tbe judgment of tlie court of common pleas, but to that petition in error there was no transcript of the record attached. The prosecutor made a motion to dismiss the action, and we were disposed to grant that motion and made an order to that effect; but afterwards the parties came in and desired leave to attach a transcript of the record to that petition in error. To that the prosecutor said, that so far as he was concerned, if the party would have the right to file a new petition in error, he would rather that the court would permit the record to be attached to the present petition in error. Without deciding that question for him, he finally concluded that the better way would be to allow the matter to be attached to the record, providing that the court should follow the suggestion already made, that it would not pass upon that question until it had passed upon the question of whether there was error in the record. Thereupon counsel argued the questions as to whether there was error in the original record of the case.

The record shows that Champion was indicted for cutting timber upon the property of a party in Adams township in this county, without leave or license, and with the intent to injure the owner of the property. The case came up for trial finally in that court, and among the errors assigned is one alleging misconduct of counsel for the state, in reference to certain matters which had occurred before the probate court sometime before, on an occasion when the same party had been arrested and brought befor e that court for cutting timber upon this land, and it was that he stated, in opening the case to the jury, in substance, that he proposed to prove to the jury that at that time the plaintiff in error here —Champion—had agreed in case the prosecution before the probate court was settled and the costs paid, not to go upon the land again to cut timber, and he proposed to show that fact fox the purpose of showing the intent of the party in subsequently going upon the land. Subsequently, upon the trial of the case, the state proposed to prove this very matter, and that was objected’ to and the court permitted the evidence to go to the jury, upon the ground as it was said of showing the intent of the party in going upon the land. The record shows that a sale had been made of the timber upon this land by Brady, the owner, to Champion, *778for a certain sum of money; but be was to take tbe timber off by tbe 1st of May, next ensuing after tbe date of tbe contract. It appears tbat upon tbe expiration •of tbat time be did not cease bis work, but continued to cut timber and thereupon Brady went to bim and demanded tbat be desist. Tbe matter ran along a little, and finally, Champion not ceasing, he was arrested and was taken to the probate court, and tbe prosecutor offered to prove upon tbe trial in tbe common pleas court tbe above statement and agreements. Tbe court allowed tbat proof to be given, and we do not think tbe court erred in tbat regard. Tbe testimony shows tbat tbe parties were having some controversy about tbe rights of Champion under bis contract. He stated tbat there bad been •an extension of bis time under tbe contract for a year, but tbat was stoutly denied by Brady. But tbe matter was a subject of contention between them, at least they made it so, and finally when tbe matter came up in tbe probate court, he surrendered all tbe rights tbat be bad under tbat contract and agreed not to .attempt to exercise any further rights under it, and we are of opinion tbat this was competent to go to tbe jury in tbe case to show tbat be bad no rights there and show bis intent in going upon tbe premises, and tbat being true, there was no error in bis statement made by counsel to tbe jury in tbe opening of tbe case, tbat be expected to prove these facts, or in tbe court of common pleas in receiving tbe evidence. Tbe record discloses tbat at some time during tbe argument of tbe case counsel for tbe state bad said tbe indictment bad been returned by as good a grand jury as ever sat in tbe county, and, pointing to tbe name of the foreman on tbe back of tbe indictment, said that be was a good citizen, etc., and it was contended that tbat was error. We are unable to see any error in tbat, especially under tbe circumstances of tbe case as they appear in tbe record. Tbe record discloses tbat tbe defendant’s attorney had been attacking tbe prosecution pretty sharply, criticising bim sharply, declaring tbat tbe prosecution was being carried on by tbe prosecutor for personal reasons, and in'reply to tbat tbe prosecutor answered that be bad nothing to do with tbe finding of tbe jury, tbat he only drew tbe indictment, and tbat tbe indictment was returned by tbe grand jury, and a good grand jury, and that tbe indictment was indorsed by tbe foreman, b. C. Gibbs. We think there is no error in that.

There was no other error pointed out in tbe case supposed to be sufficient to reverse tbe case. Tbe testimony is quite voluminous, but we have looked through it and we think tbe testimony tends very strongly to prove tbe agreement tbat has been spoken of and tbat Mr. Champion did in fact agree tbat be would not go upon tbat land again, and tbat afterwards, in violation of tbat ■agreement, be did go upon tbe property spoken of and cut and carry away limber.

There was a great, deal of confusion in regard to whether the contract bad been extended, and upon tbe question of where tbe boundary was of this property. It was stated, I believe, tbat they bad bad a survej^or go out there and restake tbe lines; but those matters did not cut any great figure in tbe case as it finally stood in' tbe judgment of this court, because we think tbe party did not make out bis evidence in regard to tbe extension by any preponderance of tbe ■ testimony; but beyond and above tbat, we think tbe agreement was shown tbat be had voluntarily relinquished any claim tbat be bad to go upon the property and tbat be was wrongfully upon tbe property and wrongfully cutting this timber.

We therefore allow, by consent of tbe counsel for tbe state, tbe transcript of this record to be attached to tbe petition in error, and then upon examination of tbe whole record we think tbat there was no manifest error, and the judgment of tbe common pleas will be affirmed at tbe cost of tbe plaintiff in error, as a final disposition of tbe case.