delivered the opinion of the Court:
This was an indictment in the Clinton circuit court, for malicious mischief, and a verdict of guilty and a fine imposed.
To reverse this judgment defendant brings the record to this court, assigning for error, that his motion in arrest of judgment was overruled, and the refusal of the court to give the instruction asked on his behalf.
These points we are of opinion are well taken. The record does not show that the indictment was brought into court by the Grand Jury. There is nothing tending to show this but the minutes of the judge, which he is not required to keep, and which he does keep for his own convenience merely, and have not the force or effect of a record. It is admitted, the clerk of the court made no entry on his minutes of the fact. McCormick v. Wheeler et al. 36 Ill. 114.
It was held by this court in Gardner v. The People, 20 ib. 430, that before any party can be tried on an indictment, it must appear from the record that it was returned into open court. This fact does not appear, and being absent the judgment should have been arrested.
It would appear from the evidence, there was a controversy between the prosecutors and the defendant, as to the possession of this lot, the defendant being in actual possession, and on the prosecutors attempting to run a division fence across it the defendant took up the posts and tore off the boards, while the fence was in process of construction. The defendant forbade them from making the fence, protesting they had no right so to do, and that he was paying rent for the whole premises.
In this view the defendant asked this instruction, which the court refused:
“If the jury believe, from the evidence, that defendant was in possession of the premises and paying rent, they should find him not guilty.”
We think this instruction should have been given. The statute in regard to malicious mischief, (R. S. Ch. 30,) does not apply to cases of this kind, where opposition is made by a claimant of premises of which he is in actual possession, to the erection of a fence across the same without his consent.
There seems to be a defect in the proof as to the county in which the offense Avas committed. This is fatal. Price v. The People, 38 ib. 436.
Tor the reasons given, the judgment must be reversed and the cause remanded.
Judgment reversed.