This was an indictment, in the Circuit Court of Walker County, for arson, on which there was a conviction, and points reserved for the revision of this Court.
The facts, as presented by the record, are these. — • The house charged to have been burnt, is on public land; it was a small cabin in a field, that.one Clark claimed to have the good will to, as it is commonly called among the squatters; or, in other words, the possessory right, as the improver. He made a verbal contract of sale to the prosecutor, of the premises; but there was no possession taken at the time of the sale, and he, afterwards, in the month of February last, leased the same premises to the prisoner for one *179year, without apprising him of the previous verbal contract of sale, to the prosecutor.
The prisoner went into the possession under the lease, and planted and cultivated the field, and used the cabin for securing his plantation tools, when not using them ; and he does not appear to have been informed of any pretended claim to the premises in question, until some time in June, when he found the prosecutor in the house, where he had been two days. He then, with two others, ordered him to go out of the house, saying he would have no such rogue on his premises.
The prosecutor, after much abuse, as he swears, left the house. The prisoner then removed the household furniture belonging to the prosecutor, out side the enclosure, and then pulled down the house and, set the logs on fire, which were partially consumed.
It is very clear, from the evidence, that the possession was with the prisoner: he had planted in peace and continued to cultivate, without any disturbance, or assertion of right on the part of the prosecutor, from February, until June. Under such circumstances, the prosecutor was an intruder and a trespasser; and the turning or ordering him out, would not have sustained a prosecution for a trespass.
The judge seems to have regarded the quo animo, as wholly immaterial, in constituting the offence of arson. It is true, that it was not material in this case; because, under no aspect, could the facts presented, be made arson. But, in a case, under different circumstances, the intention might be essential.— *180In this case, the prisoner did nothing more than he had a right to do; and neither committed, nor believed himself to have committed crime.
It is deeply to be regretted, that he has been made ■to suffer so much, and incur so much expense and trouble, under the forms .of law. The life and reputation of the citizen shoiild never be jeopardised, on such slight grounds.
The judgment and the sentence of the Circuit Court must be reversed and set aside, and the priso-j jier discharged.