
    (86 Tex. Cr. R. 247)
    McCULLERS v. STATE.
    (No. 5481.)
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1919.)
    1. Pences <@=»28(1) — Criminal RESPONSIBILITY FOE DESTROYING.
    In prosecution for unlawfully breaking, pulling down, and injuring fence of another without his consent, that fence was in possession of person in whom ownership was alleged under Code Cr. Proc. 1911, art. 457, and that such person did not consent to breaking down of fence, is essential to conviction..
    2. Pences <g=»28(3) — Sufficiency of evidence IN PBOSECUTION FOB TEARING DOWN FENCE. ,
    In prosecution for unlawfully breaking, pulling down, and injuring fence of another without his consent, evidence held insufficient to prove possession of fence by person in whom ownership was alleged.
    Appeal from Pranklin County Court; W. R, Irby, Judge.
    R. L. McCuIIers was convicted of unlawfully breaking, pulling down, and injuring the fence of another without owner’s consent, and he appeals.
    Reversed and remanded.
    Wilkinson & Davidson, of Mt Vernon, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

It was charged that appellant did unlawfully “break, pull down, and injure the fence of C. C. Vaughn without the consent of the said C. C. Vaughn.” On the subject of ownership and want of consent, two witnesses testified, one of these testifying that he saw the appellant break down the fence, and said “the fence belonged to Wright and Vaughn.” As to who Wright and Vaughn were, and as to whether one of them was the C. C. Vaughn named in the pleading, the record is silent. C. C. Vaughn testified that he owned a pasture on White Oak creek, and that, “if the appellant tore down a fence belonging to him, it was not with his consent.” It was essential that the proof show that C. C. Vaughn named in the pleading was the owner of the fence within the meaning of the statute, and to prove that the injury to the fence was not with his ctmsent We are of the opinion that this proof was not made. Whether C. C. Vaughn was the person or one of the persons named by the witness who described the fence as belonging to Wright and Vaughn is not shown; and, if it belonged to Wright and Vaughn, the record should disclose which was in possession. Frazier v. State, 18 Tex. App. 442.

Article 457, C. C. P., contains the following:

“Where one person owns tbe property, and another person has the possession, charge, or control of the same, the ownership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, the owner-ship may be alleged to be in all or either of them.”

Speaking on this subject, Presiding Judge White, in Frazier’s Case, expressed the following:

“With regard to tbe pleading in theft, it is expressly provided that ‘where one person owns the property, and another person has ike possession, charge or (and) control of the same, the ownership thereof may be alleged to be in either.’ Code Crim. Proc. art. 426. It ‘may be alleged to be in either,’ that is, it may and in most instances should only be alleged to be in one, and that one should be the one having the actual charge, control, and management. It is not in such cases necessary to allege ownership in the actual or general owner; the special owner is the one from whose possession the property is actually taken, and it is only necessary to allege a taking from him, and that it was without bis consent. In other words, as the criterion in determining how ownership. should be alleged, it should first be ascertained who was in ‘the exercise of actual control, care and management,’ at the time the property was taken. If the actual owner, then ‘the possession’ was in him, and should be so alleged, though he may have agents or servants using the property at the time in subordination to his possession. But if the ‘actual control, care and management’ at the time of the taking is in another, then this other is the special owner in ‘possession,’ and it is his possession which has been despoiled, and the property should be alleged to be his and taken from his ‘possession’ and ‘without his consent,’1 without any mention of the actual or general owner — because the property was not ‘taken’ from the latter’s ‘possession.’ What constitutes the control, care, and management of property must depend upon the circumstances of the particular ease, in many instances.
“Proof must be made that the property was taken from the possession of the party in whose possession it was alleged to be. If the owner was not in actual possession, but another was, then, if the allegation placed it in the owner and the proof showed it in another who had the ‘actual control, care, and management,’ then the variance between the proof and the allegation would be fatal, and a conviction cuold not be had.”

The record fails to show that C. C. Vaughn was in possession of the particular property which was Injured, and leaves entirely uncertain the question as to whether the fence to the pasture which he owned was injured. All that can be gathered from his testimony is that he owned a pasture, and that he did not consent to the appellant tearing his fence down. The identity of the fence that he owned with the one torn down by the appellant should have been made to appear from the evidence.

There is a marked conflict in the evidence going to show that the injury to the fence was due to any act of appellant. The jury was authorized to settle this conflict of the evidence against the appellant, but we think was not authorized to find from the evidence that C. C. Vaughn was the owner of the fence, and for that reason the judgment of the trial court should be reversed and the cause remanded, and this order is made. 
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