
    JOHNS v. STATE.
    (No. 3457.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.)
    1. Courts @=>163 — County Courts — Jurisdiction — Removal op Fence.
    In a prosecution for unlawfully pulling down a fence located on property of which, another had possession, the fact that defendant claimed to own the land did not cause the question of title to be involved, so as to deprive the county court of jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410 — 411, 443, 479, 1294; Dec. Dig. @=> 163.]
    2. Criminal Law @=>371 — Evidence oe Extraneous Crimes — Admissibility to Show lit tent.
    Where, in a prosecution for unlawfully pulling down a fence, defendant contended that he acted under a belief that he owned the land, evidence that he not only tore down the fence around the land claimed by him but also around another tract was properly admitted; testimony of extraneous crimes being admissible to show intent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dee. Dig. @=> 371.]
    3. Criminal Law @=>824 — Instructions — Requests.
    In a prosecution for unlawfully tearing down k fence, failure to instruct that certain evidence was admissible only to refute plaintiff’s contention that he acted under a belief that, as owner of the land, he had a right to tear down the fence, was not error, in the absence of a request for such instruction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. @=> 824.]
    4. Criminal Law @=>922 —, Instructions — Time to Object — Motion for New Trial.
    Where the accused fails to reserve any exception to the charge as given or the failure to submit a particular issue and present a special charge on same, an objection presented in respect thereto in a motion for new trial is too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. @=> 922.]
    5. Criminal Law @=>829 — Refusal of Instructions Covered.
    Where, in a prosecution for unlawfully tearing down a fence, defendant’s claim that he acted in good faith was fairly presented in the court’s charge, to which no objection was made, the refusal of special charges thereon was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. @=>829.]
    6. Fences @=>28 — Unlawful Removal — What Constitutes.
    Where a person in possession of land under a claim of ownership, and those under whom she claimed, had been in possession for more than 20 years, the act of another in tearing down the fence on the premises as a step toward taking forcible possession was unlawful, regardless of whether he had any title capable of being established in a civil suit. ' '
    [Ed. Note. — For other cases, see Fences, Cent. Dig. §§ 62-67; Dec. Dig. @=>28.]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Johnson Johns was convicted of unlawfully pulling down a fence, and appeals.
    Affirmed.
    Ed R. Bumpass, of Terrell, and Huffmaster & Huffmaster, of Kaufman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully pulling down a fence, the property of Sallie Cole, and his punishment assessed at a fine of $10.

It appears: That more than 20 years ago Julia Ann Johns went in possession of some 20 acres of land in Kaufman county, residing on 10 acres thereof. That during her lifetime a dispute arose between her and appellant, and he was allowed to go in possession of 5 acres of the land. That subsequent thereto, in about 1907, appellant brought suit for 5 more acres; he claiming title to 10 acres of the land. After the suit was brought by appellant, Julia Ann Johns died, and he made Sallie Cole, the prosecuting witness in this case, a party to the suit, as independent executrix of the estate of Julia Ann Johns. The suit was subsequently dismissed under rule for costs, which would leave Sallie Cole as independent executrix in possession of tlie five acres of land and the fence situate thereon. Sallie Cole testified that her mother had placed the fence on this land more than 20 years ago; the witness assisting in building the fence, as well as her brother, Walter Johns. Walter Johns testified to this same state of facts. Appellant does not deny this fact, but admits it to be true. However, he says he was the rightful owner of the land; that the deed which was made to Julia Ann Johns for this land in 1875 was made without his knowledge; that he in fact paid for the 10 acres of land. However, from the record it is shown beyond question that Julia Ann Johns was in possession of the land and the fence thereon when sh& died, and that appellant had then brought suit for the land, and furthermore that Sallie Cole went into possession of the land and fence, as independent executrix of the estate of Julia Ann Johns, and, when appellant’s suit was dismissed, that she remained in possession thereof. The court did not err in overruling the plea to the jurisdiction of the county court, as the title to the land was not involved and could not be awarded in this suit. The evidence was brought into the record in showing who was in possession of the land and fence, and whether or not appellant’s claim that he tore down the fence under an honest belief that he had a right to do so was correct.

It appears by the testimony of Sallie Cole that, since appellant’s suit for the land on which the fence was situated was dismissed under rule for a cost bond, he had torn down the fence in question several different times, and the prosecuting witness had had it placed back; that on this occasion he tore the fence down mainly between sundown and sunup, he giving as his reason that his children were going to school, and he utilized the time when they were not at school, that they might assist him. Sallie Cole testified that appellant not only tore down the fence around this five-acre tract, but he had also torn the fence down around another tract of land in her possession. Appellant objected to this latter testimony on the ground that it was incompetent and too remote. As appellant’s contention was (admitting that he had torn down the fence) that he did so under the belief that he had the right to do so, the evidence was admissible. Mr. Branch, in his work on Criminal Law, says:

“AVhen extraneous crimes tend to show the intent, when intent is an issue, the testimony is admissible” — citing Gilbraith v. State, 41 Tex. 567; Long v. State, 11 Tex. App. 387; Davison v. State, 12 Tex. App. 215; Glover v. State, 76 S. W. 465 ; Penrice v. State, 105 S. W. 797; and other cases.

In Encyclopedia of Evidence, vol. 7, p. 627, the rule is said to be:

“In all eases in which the guilty knowledge or intent of a party in the act or transaction in question is an essential element, evidence of other similar acts or offenses committed by such party is relevant and competent testimony”— citing authorities from many states.

All the acts were committed by appellant after the time his suit was dismissed in the district court and prior to the time this prosecution was commenced, and would aid the jury in determining whether appellant’s claim that he tore down the fence under the belief he had a right to do so was correct, and the testimony was not too remote.

Appellant insists that, if the testimony was admissible, the court should have instructed the jury the purpose for which said testimony was admissible. This is a misdemeanor, and the court is not required to give any charge to the jury, and, if he does do so, the appellant must reserve an exception to the charge as given or failure to submit an issue, and present a special charge on that issue. This appellant did not do, and it is too late to complain of the charge in this respect in the motion for a new trial.

The court’s charge on the issue of appellant’s claim that he acted in good faith, believing he had a right to tear down the fence, was presented in as favorable light as he had a right to demand in the court’s main charge. It was not objected to in any manner at the time it was given, and, under such circumstances, there was no error in refusing the special charges requested.

The appellant’s suit for the land on which the fence was situate, his testimony on the trial that his mother had been in possession of it, and his sister also, shows conclusively that he intended by force, without her consent, to eject her and take possession. This the law does not sanction. In a civil suit for the land, he may, as he contends, be adjudged the owner of the land; yet he admits he knew another was in possession, claiming it as Ijer own; and the courts are created to settle such differences, and he had no authority or right to seek to forcibly táke possession away from one in possession, when the record discloses that she and those under whom she claimed had been in possession of the land for more than 20 years.

The judgment is affirmed. 
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