¶1delivered the opinion of the court.
¶2The evidence on the part of the state fails to show such possession of the land by the prosecutor, Burks, at the time of the alleged trespass, as to bring the appellant within the condemnation of § 2980 of the code. Burks had no pretense of title to the land, and according to his own showing was there by permission of Johnson. He had abandoned the actual occupancy and gone elsewhere to make a crop, intending to return at a distant time. His home was not on the land on which the trespass is charged to have been committed, and whether he should ever return' to it was at least doubtful. Under these circumstances, the statute should not have been applied as against the defendant.
¶3The judgment is reversed and the defendant discharged.