The plaintiff in error was defendant in the court below to an indictment containing two counts, the first of which charged him with unlawfully maintaining and controlling certain fences, which, together with natural barriers and cross-fences, inclosed a large body of public land of the United States situated in Harney comity, state of Oregon, and the second of which counts charged him with unlawfully preventing and obstructing persons from peaceably entering upon or establishing a settlement or residence on the tracts of public land within the inclosure, and preventing and obstructing their passage over and through the public lands so inclosed by means of the fences described in the first count, contrary to the provisions of Act *712 Cong. Feb. 25, 1885, c. 149, 23 Stat. 321 (U. S. Comp. St. 1901, p. 1524). Upon the trial of the issues made by the defendant's plea of not guilty, a verdict was rendered in his favor upon the second count of the indictment and of guilty under the first count.

The inclósure complained of was constructed many years prior to the times in question herxe by one Peter French, who was the owner of a large amount of land called the “P Ranch,” upon which he had a great many head of stock, and consisted of a wire fence fastened to posts set about 30 feet apart which was erected upon a string of 40-acre tracts of land owned by French, and- extending many miles to where it connected with natural barriers consisting of precipitous ’ rim rock several hundred feet in height. The ranch consisted of about 140,000 acres,-and within the inclosure were also many thousand acres of public land of the United States. Several public roads pass through the lands over which the government mails are carried, and which arq also used, as’ common highways by the traveling public. At some at least of the points where the roads were crossed by the fence gates were placed by the builder of the fence. After the death of French, which occurred in 1897, the administrator of his estate operated the property and made use of the inclosure as French had done until the fall of 1906, when it was acquired by other parties, for whom the defendant Hanley in April, 1907, became general manager of the ranch as well as the stock thereon.

It is insisted on his behalf that .the trial court should have directed a verdict in his favor upon the ground that the evidence failed to show that he ever maintained or controlled the inclosure including- the government land. An attentive consideration of the record, however, satisfies us that the facts and circumstances of the case as disclosed by the evidence Were such that the jury might properly conclude that Hanley knew that the fence was originally constructed upon the ranch lands, in connection with natural barriers, so as to include within such inclosure a large amount of government lands, thereby giving the ranch owners practically exclusive possession and control of those public lands; that, when he became general manager of the ranch and of the stock upon it for the new owners, he came into control of the fences, which control he exercised by means of a general foreman and subordinate ones;. and that the property under his management was operated as though the fences were maintained for the purposes for which they were originally constructed. Indeed, there was direct testimony to the effect that the inclosure was repaired by a foreman appointed by the defendant after he became manager. In respect to that, however, the court instructed the jury:

It is true that there is uncontradicted evidence to the effect that the defendant told the agent sent by the Land Department of the government to examine the inelosure in question, that he thought the fences were down and open in places, and that, if they were not in a condition satisfactory to the government, he would make them so, and would willingly go with the agent in person for that purpose; still, if the fences under the defendant’s control did in fact unlawfully inclose land of the government, we do not think it can be properly held that the defendant’s offer to the land agent would render the offense nugatory. We are of the opinion that the evidence was such as to make proper the action of the trial court in refusing to direct a verdict foi the defendant.

The remaining question relates to the instructions given and refused, by the court. Any person may lawfully fence or otherwise inclose his own land, and may connect his fence or inelosure with that of an adjoining landowner, provided he does so in good faith. When, however, under the guise of inclosing his own land, he constructs or maintains such a fence or inelosure *for the purpose and with the intention of inclosing public lands of the government, the act is unlawful. Camfield v. United States, 167 U. S. 528 , 17 Sup. Ct. 864, 42 L. Ed. 260 ; Potts v. United States, 114 Fed. 52 , 51 C. C. A. 678 . The court below so instructed the jury, in effect, in the following language:

*715 This seems to ns to state the law fairly in respect to the point there referred to. The difficulty, however, in the case is this: The court refused to give this requested instruction:

—and, instead, gave to the jury this instruction, in respect to each of which actions of the court the plaintiff in error reserved an exception :

Section 1 of the act of Congress of February 25, 1885, makes unlawful the acts charged against the defendant in the first count of the indictment, and section 3 of the act makes unlawful the acts charged against him in the second count. By the fourth section of the act it is declared:

While the fourth section thus makes it unlawful for any one to aid, abet, counsel, advise, or assist in any violation of the act, the indictment does not charge that offense against the defendant. But the court in the instruction last quoted told the jury to consider and determine, among other things, whether Hanley aided, abetted, counseled, advised, or assisted in the maintenance of the alleged inclosure in any way at any time within the three years prior to March 20, 1909. The evidence is without conflict to the effect that Hanley’s connection with the management of the ranch only commenced in April, 1907, although there was evidence to the effect that he had resided in Harney county since 1879, and had from time to time visited the ranch during that period.

It is, of course, true that the proof is not to be limited to the exact date alleged in the indictment, but it is quite as true that an offense for which one stands indicted cannot be established in whole or in part by proof of his commission of an offense not included in the indictment. Whether or not Hanley aided, abetted, counseled, advised, or assisted the administrator of the estate of French or anybody else within three years next preceding the indictment in the maintenance *716 of the alleged inclosure was beside the charge upon which the defendant was on trial. It was his own alleged acts in unlawfully maintaining the fence, and in unlawfully excluding others from the government lands specified in the indictment, for which he was being tried, and it was prejudicial error on the part of the trial court to direct the jury to consider and determine whether the defendant aided,, abetted, counseled, advised, or assisted somebody else to violate the provisions of section 4 of the act of Congress of February 25, 1885.

For this error, the jugment must be, and is hereby reversed, and the cause remanded to the court below for a new trial.