SEC. 6. This act shall take effect July first, one thousand nine hundred and seven.

1907, c. 331.

Sec. 309 (2388). Displaying false number on boat.

If any person shall display any other number on their sail than the one specified in their license or display a number when the boat or vessel has not been licensed, he shall be guilty of a misdemeanor and shall be fined not less than twenty-five dollars.

1903, c. 516, s. 27.

Sec. 310 (3371). Marriage license; obtaining, by false representation. If any person shall obtain a marriage license for the marriage of persons under the age of eighteen years by misrepresentation or false pretense, he shall be guilty of a misdemeanor, and upon conviction shall for each offense be fined not exceeding fifty dollars, or imprisoned not exceeding thirty days, or both, at the discretion of the court.

1885, c. 346.

Sec. 311 (3307). False representation of pedigree.

If any person shall, with intent to defraud or cheat, knowingly represent any animal for breeding purposes as being of greater degree of any particular strain of blood than such animal actually possesses, and by such representation obtains from any other person money or other thing of value, he shall be guilty of a misdemeanor, and upon conviction thereof, shall for each offense be punished by a fine of not less than sixty dollars nor more than three hundred dollars or by imprisonment for a term not exceeding six months.

1891, c. 94, s. 2.

Sec. 312 (3308). Fraudulent registration of stock.

If any person shall, by any false representation or pretense, with intent to defraud or cheat, obtain from any club, association, society or company for the improvement of the breed of cattle, horses, sheep, swine, fowls or other domestic animals or birds, a certificate of registration of any animal in the herd register of any such association, society or company, or a transfer of any such registration, upon conviction thereof he shall be punished by imprisonment for a term not exceeding three months or a fine not exceeding one hundred dollars, or by both such fine and imprisonment.

1891, c. 94, s. 1.

Sec. 313 (3711). Bills, etc., unauthorized, issued to circulate as money.

If any person or corporation, unless the same be expressly allowed by law, shall issue any bill, due bill, order, ticket, certificate of deposit, promissory note or obligation, or any other kind of security, whatever may be its form or name, with the intent that the same shall circulate or pass as the representative of, or as a substitute for, money, he shall forfeit and pay for each offense, the sum of fifty dollars; and if the party offending be a corporation, it shall also forfeit its charter. And every person offending against this section, or aiding or assisting therein, shall be guilty of a misdemeanor. Code, s. 2493; 1895, c. 127; R. C., c. 36, s. 5.

Sec. 314 (3712). Bills, etc., unauthorized, passing as money.

If any person or corporation shall pass or receive, as the representative of, or as the substitute for, money, any such bill, check, certificate promissory note, or other security of the kind mentioned in preceding section, whether the same was issued within or without the state, such person or corporation, and the officers and agents of such corporation aiding therein, who shall offend against this section, shall for every such offense forfeit and pay five dollars, and shall be guilty of a misdemeanor.

Code, s. 2494; 1895, c. 127; R. C., c. 36, s. 6.

FALSE TOLL-DISHES.

Sec. 315 (3679). Mills, false toll-dishes.

If any owner, by himself or servant, keeping any mill, shall keep any false toll-dishes, he shall be guilty of a misdemeanor. Code, s. 1848; R. C., c. 71, s. 7; 1777, c. 122, s. 11.

FEDERAL QUESTION.

Federal questions raised by petition for rehearing after a state court has filed its opinion, before that has been certified down, and when that court entertains the petition and proceeds to discuss and decide those questions, are not raised too late for the purpose of a writ of error from the supreme court of the United States. Mallett, 128-619.

The provisions for an appeal by the state in a criminal case from the grant of a new trial, is not an ex post facto law in violation of U. S. Const., art. 1, sec. 10, as applied to cases in which the trial had been had, though the new trial had not been granted before the statute was passed. Mallett,

128-619.

The allowance of an appeal to the state from the court of one district, but not from another district, of the state in case of the granting of a new trial to an accused person, is not a denial of the equal protection of the laws guaranteed by the U. S. Const., 14th amendment. Mallett, 128–619. A federal question in respect to admission of evidence can not be passed upon by the supreme court of the United States on writ of error to a state court, when the question as to the evidence was not dealt with by the state court as a federal question. Mallett, 128-619.

FELONY.

Sec. 316 (3291). Felonies and misdemeanors defined.

A felony is a crime which is or may be punishable by either death or imprisonment in the state's prison. Any other crime is a misdemeanor.

1891, c. 205, s. 1.

Sec. 317 (3292). Felonies, punishment of.

Every person who shall be convicted of any felony for which no specific punishment is prescribed by statute, shall be imprisoned in the county jail or state's prison not exceeding two years, or be fined, in the discretion of the court, or if the offense be infamous, the person offending shall be imprisoned in the county jail or state's prison not less than four months nor more than ten years, or be fined.

Code, s. 1096; R. C., c. 34, s. 27.

FENCES.

See also STOCK LAW AND FENCES; INJURY TO PROPERTY.

Sec. 318 (3411). In stock law territory.

If any person willfully tears down, or in any manner breaks a fence or gate, or leaves open a gate erected around a stock law territory, or willfully breaks any enclosure within any township, district or county where a stock law is in force, and wherein any stock is confined, so that the same may escape therefrom, he shall be guilty of a misdemeanor, and shall be fined not more than fifty dollars or imprisoned not more than thirty days.

Code, s. 2820; 1889, c. 504.

Sec. 319 (3412). Removal of common.

If any person owning, occupying, cultivating or being in possession of any lands under a common fence protecting the lands, crops or property of others, shall remove such fence or any part

thereof during the time in which any crops are growing or being actually cultivated thereon, or property is protected by such fence, and before such crops are harvested, without the consent and permission of such person or persons whose crop or property is protected by such common fence, he shall be guilty of a misdemeanor and upon conviction shall be fined not exceeding fifty dollars or imprisoned not exceeding thirty days: Provided, that the provisions of this section shall not apply when ninety days' notice of such removal shall have been given to all persons owning, cultivating or in possession of lands surrounded by such common fence, or having property protected thereby, and when thereafter such fence shall be removed between the first day of January and the first day of March following such notice of intended removal. Code, s. 2820; 1903, c. 20.

Sec. 320 (3673). Houses, churches, fences, walls; injury to.

If any person shall, by any other means than burning or attempting to burn, unlawfully and willfully demolish, destroy, deface, injure, or damage any of the houses or buildings previously mentioned in this chapter; or shall unlawfully and willfully burn, demolish, pull down, destroy, deface, damage, or injure any church, uninhabited house, outhouse, or other house or building not mentioned before in this chapter; or shall unlawfully and willfully burn, destroy, pull down, injure or remove any fence, wall, or other inclosure, or any part thereof surrounding or about any yard, garden, cultivated field or pasture, or about any church, grave-yard, factory, or other house in which machinery is used, every person so offending shall be guilty of a misdemeanor. Code, s. 1062; R. C., c. 34, s. 103.

STATUTE NOT IN CONFLICT.-There is no conflict between this section and section 642, and an indictment charging that defendant did cut and destroy "a wire fence enclosing a pasture," may be sustained under the above section. Biggers, 108-760.

The husband of the prosecutrix leased a field of defendant under an agree ment by which the husband was to put a fence around the field, which he did. The husband died and prosecutrix continued in possession up to the fence, but the fence in fact was a division fence between prosecutrix and another tenant of defendant. Defendant, upon notice to the prosecutrix, removed the fence, she forbidding the removal: Held, that defendant was guilty. Piper, 89-551.

It is not indictable for one to remove a fence from his own land which had been unlawfully put there by another, though it partially encloses a cultivated field belonging to the other. Headrick, 48 (3 Jones), 375.

WHAT KIND OF FENCE IS PROTECTED.-An erection, consisting of posts nine or ten feet apart on which slats were nailed, placed by the side of a road and separating it from a field, but which did not connect with any fence or surround the field, is not such a fence as is protected from injury. Roberts, 103-744.

INDICTABLE, THOUGH DEFENDANT HAS BETTER TITLE.-The removal of a fence from around a cultivated field in the possession of another is indictable, though defendant may have a better title to the premises than the prosecutor. Hovis, 76-117.

TITLE. Where a person has neither possession nor right of possession to land, he can not, on indictment for unlawfully removing a fence therefrom, raise a question as to the right of entry, nor is it any defense that he did the act to bring on a civil suit in order to try the title. Graham, 58 (8 Jones), 397.

EVIDENCE-AGREEMENT.-Evidence offered by defendant to prove that he and the prosecutor had agreed upon the removal and had had a surveyor to locate the line, and that he moved the fence to such location in good faith, believing that he was carrying out the agreement, was improperly excluded, since if true he could not be guilty. McCracken, 118—1240.

REMOVING FENCE THE OFFENSE.-To constitute the offense of removing a fence the defendant must be a trespasser, and to be a trespasser he must act willfully and unlawfully. McCracken, 118-1240.

A widow who removed a fence running across a field, a part of which belonged to the prosecutor, and which her husband, during his life, and she since his death, with the consent of the prosecutor, had cultivated, is not guilty, since the act does not extend to persons in the rightful possession of the land. Williams, 44-197.

What is a sufficient fence, and what kind of a stream is sufficient instead of a fence are questions of law. Lamb, 30 (Ired.), 231.

Sec. 321 (3413). Wire, destroying.

If any person shall willfully destroy, cut or injure any part of a wire fence or a fence composed partly of wire and partly of wood situated on the land of another, he shall be guilty of a misdemeanor, and upon conviction shall be imprisoned not exceeding thirty days or fined not exceeding fifty dollars.

1889, c. 516.

INDICTMENT. An indictment under this section need not aver that the fence surrounded or enclosed any field or other premises. Biggers, 108— 760.

JURISDICTION.—The indictment charged that defendant did cut and destroy "a wire fence enclosing a pasture," and it appeared that the offense was committed in May, 1889, and the indictment was found at fall term 1889: Held, that the superior court had jurisdiction of the offense under section 268 (The Code, sec. 1062), since the indictment charged the injuring of a wire fence "enclosing a pasture," and the state was bound to prove that the fence did enclose a pasture, while under this section no such averment is necessary, though an indictment under it would lie in a case where the wire fence in fact surrounded a field or pasture. The two statutes not being in conflict it was not necessary that the indictment should refer to the statute under which it was found so as to show jurisdiction. Biggers, 108760.

THIS STATUTE DOES NOT REPEAL SECTION 268.-There is no conflict between this section and section 273 (The Code, sec. 1062), and an indictment for cutting and destroying "a wire fence enclosing a pasture" may be sustained under section 273. Biggers, 108-760.