OPINION by
Me. Justice Sterrett:The commonwealth elected to go to trial on the second and third counts of the indictment drawn under §§ 21 and 22 of our Penal Oode. Evidence tending to sustain the material aver-ments of each count was adduced and submitted to the jury under instructions which appear to be substantially correct. The result was a verdict of guilty on each count and judgment thereon.
If the commonwealth had elected to proceed on the first count, the deed referred to in the first specification might have been relevant; but as the issue was presented on the remaining counts it was rightly excluded as irrelevant» The defendant was permitted to show, if he could, that the island in dispute and described in the indictment is not the island mentioned by the commonwealth’s witnesses. On that branch of the case he had no right to anything more.
The paper referred to in the second specification was also rightly excluded as irrelevant and incompetent.
The evidence referred to in the third, fourth, and fifth specifications was not incompetent or irrelevant for the purposes for which it was received. It had some bearing on the questions of fact involved in the issue, — viz., whether the prosecutor had such possession of the island in question as the law recognized as sufficient, and whether he was put out or kept out of possession by force, threats or menacing conduct of defendant. In connection with other testimony in the case, the evidence complained of was not improper for the consideration of the jury.
There is no error in either of the answers to defendant’s points referred to in the sixth, seventh, and eighth specifications, respectively. As explained and qualified, by reference to the general charge, the answers complained of were neither erroneous nor misleading.
The remaining specifications of error are not sustained. The evidence presented questions of fact which it was the exclusive province of the jury to consider and determine; and having *426found tbe defendant guilty on tbe second and third counts, there was no error in awarding restitution of the possession illegally taken and withheld.
Sentence affirmed.
GroiiDON, Ch. J.; dissents.