¶1delivered the opinion of the court.
¶2This is an indictment against the defendant, Goforth, for malicious mischief; and the specification is, that he did maliciously, unlawfully and wilfully throw down the fences of Thomas J. Chase.
¶3The proof shows, that Goforth had rented of Chase a lot of ground, to be cultivated in com; that Chase permitted him to live in a cabin on his land, round which there was a small lot of open ground, under fence, which he was also permitted to use for a garden; that during the time he was thus in the use and occupation of the premises, he took a portion of the rails from the fence for the purpose of making a pig pen, but that he left the fence when he gave up the possession of the cabin in as good or better condition than he found it.
¶4There is no pretence whatever for holding, that the removal of the rails from the fence, was with an unlawful, wilful and malicious intent to injure Chase, but, on the contrary, with the belief of his right, arising out of his occupation of the premises, so to use the rails.
¶5The proof then does not sustain the verdict found by the jury, and the judgment of the circuit court will therefore be reversed and the case remanded for a new trial.