majority"> Davis, J.

(after stating the case.) It was manifestly the purpose of the act under which the defendant was indicted to keep off intruders and to prevent wilful and unlawful trespasses upon land and to subject persons, who might so wilfully trespass after being forbidden to indictment for so doing, but, as was said in State v. Hause, 71 N. C., 518, “ when the statute affixed to such a trespass the consequences of a criminal offence, we will not presume that the Legislature intended to punish criminally acts committed in ignorance, by accident, or under claim of right, and in the bona fide belief that the land is the property of the trespasser, unless the terms of the statute forbid any other construction.” Even conceding that the possession of the tenant ivas not such as "gave to him authority to invite the defendant to come upon the land, the facts show conclusively that he went only upon that invitation, and this excludes the idea of such wilful trespass as is contemplated by the statute. But we think that the tenantbeing in possession had the right, in the absence of any evidence to show that there were restrictions upon his tenancy to the contrary, to invite such persons as his business interest or pleasure might suggest, to -come upon the premises so in his possession for any lawful purpose. The possession was rightfully his, and in the ■absence of any restrictions upon his tenancy he had the right *719 to control the possession for any lawful purpose. If he or his famity were sick might he not send for a physician, and if forbidden by the landlord would sucli physician be liable to an indictment for going' on the premises to attend a patient?

No such invitation would protect a person from liability for a wilful and malicious trespass to the injury of the landlord if committed under the fraudulent pretence of such invitation. The evidence in this case shows no purpose to commit such a trespass, and there is error. State v. Hanks, 66 N. C., 612; State v. Crossett, 81 N. C., 579; State v. Ellis, 97 N. C., 447; State v. Smith, 100 N. C., 466.

Error.

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