Appellant was indicted, tried and convicted of a felony, in the Benton Circuit Court, under section 1902 of Kirby’s Digest, for unlawfully, maliciously and feloniously cutting down ten apple trees growing upon the land of Julius Giger and Henry Giger in said county and State, and one year’s imprisonment was imposed upon him as a punishment therefor. Prom the judgment of conviction an appeal has been duly prosecuted to this court.
The evidence tended to show that, on or about the 10th day of October, 1918, appellant, who had had a dispute or quarrel with his employers, Julius Giger and Henry Giger, the owners of an apple orchard near Benton-ville, Arkansas, consisting-of about 65 acres of 17-year-old apple trees and some resets, entered the orchard in the night time and cut down 75 or 80 apple trees of the value of $1,000, and injured others by cutting the limbs off and hacking them; that the trees so cut down and injured were of the value of about $1,000 as fruit trees, but were of nominal value, only, as wood or timber trees, and had to be hauled to the brush heap and burned.
Over the objection and exception of appellant, the jury were instructed, in substance, that, if they found from the evidence beyond a. reasonable doubt that appellant cut down and injured the trees at the time and in the manner alleged in the indictment, and that they were of the value of more than $10, they should find him guilty and assess his punishment at imprisonment not exceeding two years; but, if they found from the evidence beyond a reasonable doubt that appellant cut down and damaged the trees at the time and in the manner charged in the indictment, and that said trees were of the value of $10 or less, they should find the defendant guilty of malicious mischief and assess his fine at not less than $50. Appellant requested instructions to the effect that the value of the trees should be determined by the jury according to their market value as timber, and not their estimated value as fruit trees. The instructions requested by appellant upon the method of valuing the trees were *178each refused and proper objections and exceptions were made and saved to the ruling of the court in refusing to give said instructions.
It is insisted by appellant that section 1902 of Kirby’s Digest, under which appellant was indicted, which is section 1 of the act of March 17, 1883, does not include the destruction of, or injury to, fruit trees. Said section reads as follows:
“Any person who shall, -without lawful authority, wilfully and knowingly enter upon any lands belonging to this State, or any lands belonging to any corporation or person, and shall cut down or destroy, or cause to be cut down or destroyed, any tree or trees standing or growing thereon, of the value of more than ten dollars, or any person who shall induce, assist, aid or abet any other person so to do, shall be deemed guilty of a felony, and shall upon conviction be punished by imprisonment, at hard labor, in the State penitentiary not more than two years.”
It will be observed that there is no ambiguity in the language used in the section. In plain terms, it is made a felony by the section just quoted to wilfully and knowingly enter upon the lands of the State, any corporation or person and destroy or injure “any tree or trees” standing or growing on said land. Giving each word in the section its ordinary meaning, all kinds of trees, whether timber, fruit, ornamental or shade, are included under the rules for the construction of statutes laid down by this court in the cases of McNair v. Williams, 28 Ark. 200; Geary v. Parker, 65 Ark. 521; Hancock v. State, 97 Ark. 38. As suggested by the Attorney General, in order to place the interpretation contended for by appellant upon section 1902 of Kirby’s Digest, it would be necessary to insert the word ‘1 timber ’ ’ before the word ‘ ‘ tree ’ ’ or to add an exception to the section of “fruit trees.” This addition or exception would conflict with the rule of this court laid down for the construction of statutes in the case of Hodges v. Dawdy, 104 Ark. 583. By reference to section 1906 of Kirby’s Digest, which was section *1795 of the act of March 17,1883, being the same act in which section 1902 of Kirby’s Digest appears as section 1, it is apparent that the Legislature did not intend to limit the kind of trees cut to timber trees. The following language appears in the latter part of section 1906 of Kirby’s Digest, or section 5 of the act of March 17,1883: “It shall not be necessary to allege in the indictment, or prove on the trial, the kind of trees, timber, lumber, staves or shingles cut, destroyed or carried away; * * #
It is urged by appellant that the crime! charged against him is not included in section 1902 of Kirby’s Digest because specifically defined in section 1901 of Kirby’s Digest. Section 1901 not only defines malicious mischief as destroying or injuring “any kind of wood or timber, standing or growing upon the lands of any other person,” but also characterizes the destruction or injury of ‘ ‘ any fruit, ornamental or shade trees ’ ’ a crime. The use of the words “wood or timber” in section 1901 might have reference to only trees growing which could be converted into “wood or timber” and, in order to include all kinds of trees, it was necessary to specifically designate the other kinds of trees as fruit, ornamental or shade trees. It was not necessary, however, to add “fruit, ornamental or shade trees” in section 1902, as the use of the words “any tree or trees” would include, necessarily, all kinds of trees. It will be observed that section 1902 of Kirby’s Digest makes the same trespass a felony if the value of the tree or trees destroyed or injured exceed $10 in value. So, from that fact, it is quite clear that there is no conflict in the statutes. A party might be prosecuted under either. This court said in the case of Meadows v. State, 130 Ark. 471, in an indictment for a felony under section 1902 of Kirby’s Digest, that the defendant could be convicted for a misdemeanor under section 1901 of Kirby’s Digest, for the reason that section 1901 of Kirby’s Digest was not repealed by section 1902 of Kirby’s Digest, because there was no inconsistency between the two sections. This conclusion was necessarily reached because section 1901 made the trespass a *180misdemeanor, and section 1902 made it a felony if the value of the trees exceed $10. It is true in the case of State v. Malone, 46 Ark. 140, that Mr. Justice Smith, in holding that there was no inconsistency between the two statutes, said that “the earlier statute punishes the trespasser without regard to the intent of the trespasser; whereas the later requires the act to be done with intent to convert the property to the use of the taker or that of his employer or principal.” In that case, the learned justice was not dealing with section 1902 but 1903 of Kirby’s Digest. Section 1903 of Kirby’s Digest is clearly a larceny statute involving the question of intent. Section 1902 of Kirby’s Digest does not make the intent to .convert the property to one’s own use an element of the crime any more than does section 1901.
It is next insisted by appellant that reversible error was committed because the value of the timber was not ascertained by the jury and included in the verdict. It is provided in section 1906 of Kirby’s Digest that “in case the accused be found guilty, the value of the timber so cut down, destroyed, sawed or carried away shall be stated in the finding or verdict.” We think the only purpose and intent of said section 1906 was to form a basis for civil liability. It was necessary under the instructions of the court for the jury to find that the trees exceeded $10 in value before they could convict appellant. The failure to insert in the verdict the real value of the trees in excess of $10 could not affect appellant’s guilt or innocence. The statute is directory and not mandatory.
Lastly, appellant insists that the judgment should be reversed because the court erred in refusing to instruct the jury that, in ascertaining the value of the trees destroyed or injured, they must determine it by their market value as timber, and not their estimated value as fruit trees. The rule for measuring the value of such trees, defined in the requested and refused instructions, does not conform to the rule announced by this court in the case of Laser v. Jones, 116 Ark. 206. The rule therein *181announced is the criterion by which the value of fruit trees should be determined.
No error appearing in the record, the judgment is affirmed.