Page:Federal Reporter, 1st Series, Volume 9.djvu/700

 UNITED STATES V. MILLS. 685 �BuNN, D. J., (char ging jury.) The questions of law in this case are quite simple, and, for the most part, have already been decided by the court. Ail the questions of difficulty are questions of fact, which are for the jury. So that the burden and responsibility of a proper and judicious determination of the case reets with you. The first question to which yonr attention will be called is, has the defendant, Mills, eut and carried away, and converted to his own use, timber from govern- ment lands in the manner charged? If he has, then your verdict should be against him, unless such cutting was wholly done, without knowledge or fault of defendant, upon lands which he afterwards entered and paid for. �There are two pieces of goverament land upon -^hich the defend- ant acknowledges he eut timber. But he alleges and swears that he did it under the belief that he had a right to eut, because he owned the land. The N. J of the S. E. J of section 4, township 20, range 2 W., he admits cutting the timber from. It is in evidence that he afterwards entered this land from the govemment and paid the pries, and, 80 far as this 80 acres is concerned, you will determine from the evidence whether, at the time he eut the timber, he supposed he had entered the land as he testifies, and that he took away the timber under that belief, and without fault or knowledge on his part that the land belonged to the United States. If you find in his favor on this ques- tion, then, under the law of congress, — aot of June 15, 1880, (21 St. at Large, 237,) — having entered the land and paid the costs up to the time of the entry, he is excused from any liability for the tres- pass, and no verdict should be f ound against him therefor. The same principle and same instruction are applicable to the tie-cut- ting on the N. W. N. W. section 22, where defendant admits the cutting, but swears that he supposed he had the right to eut it under a purchase from Van Tassel, and when he found it belonged to the govemment he entered it and paid for the land. On these two de- scriptions you will find specially, as to each piece, whether the cutting was done innocently under the belief that defendant had the right to eut. �If you find against the defendant on these questions, then, however your finding may be upon the rest of the case where the cutting is controverted, your verdict will be against the defendant for the value of the logs and ties eut and converted from these descriptions. �As regards the other lands in controversy, the cutting and conver- sion of the timber is disputed by the defendant, and it will become ��� �