
    FITZSIMON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 24, 1911.)
    Fences. (§ 28) — Removal — Cbiminal Responsibility.
    It is not criminal for one in the actual quiet and peaceable possession of land upon which there is a fence to remove the fence, though his possession be unsupported by legal title.
    [Ed. Note. — For other cases, see Fences, Dec. Dig. § 28.]
    Appeal from Medina County Court; H. E. Haass, Judge.
    John T. Fitzsimon was convicted of unlawfully pulling down and injuring the fence of a third person, and appeals.
    Reversed and remanded.
    Dytle & Brown, for appellant.
    Geo. Mend-ell, Jr., and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted in the county court of Medina county on a complaint and information charging him with unlawfully breaking, pulling down, and injuring the fence of ¡Leo Tschirhart, without the consent of the said Tschirhart. Upon a trial he was convicted, and his punishment assessed at a fine of $10. This is the second appeal in this case; this ease having been reversed on the former appeal (128 S. W. 903) because of the refusal of the court to admit certain testimony, which the court admitted on this trial.

Mr. Tschirhart owned 35 feet off of lots 3 and 4, in block 4, in the town of Castroville. The defendant owned all of lots 5, 6, 7, and 8, in said block. It appears that some 30 years ago one Tarde owned all of the block, and lived on that portion now owned by defendant. He sold to a man named Geyer lots 3 and 4, who erected a partition fence. This fence had remained there during all these years. About 12 years prior to the institution of this prosecution defendant purchased the property he now owns, and during these years he has kept this fence in repair. Kilhom purchased a part of lots 3 and 4, originally purchased 'by Geyer, and resided thereon. The Knights of Honor purchased the remainder of lots 3 and 4, and owned it until about three months before the institution of this prosecution, when it was purchased by Tschirhart. When Tschirhart purchased the lots from the Knights of Hon- or, he claimed the fence, on the ground it was erected by Geyer when he purchased lots 3 and 4, some 30 years prior to this date. Kilhorn testified that he was a trustee in the Knights of Honor lodge when it owned the lots now owned by Tschirhart and had the lots in his inclosure, and when the lodge owned the lots it did not claim the fence; but he had always understood that the fence belonged to defendant and those under whom he claimed, that defendant was in possession of the fence, and kept it in repair. No houses were on the Tschirhart lots, while defendant lived on his lots, and had recently erected a hotel thereon.

From the evidence it is probably true that the fence was erected by those under whom Tschirhart claims, but for 12 years they had left it to defendant to keep in repair, and for this length of time, he testifies, he claimed it as his own, and thought it belonged to him, and no one had contended otherwise until Mr. Tschirhart purchased a portion of lots 3 and 4, some three months prior to the institution of this prosecution. Defendant, after building his hotel, says he desired to build a new division fence, and put men to work doing so, when Mr. Tschirhart stopped them, and caused his son to nail on planks, closing up that portion torn down by defendant’s employSs. Defendant went to work to put in a post on which to1 hang a gate, when Mr. Tschirhart approached and they had some words over the fence. Defendant again tore down the planks which the son of Tschir-hart had nailed up, when Mr. Tschirhart filed a complaint against him.

It appears that, in the trial of this case, the issue in the trial court was mainly who rightfully owned the land on which the fence was situate, not who was in possession of the fence, and in consequence who rightfully owned the fence by reason of ownership of the land. In the case of Behrens v. State, 14 Tex. App. 121, Judge Hurt, speaking for the court, holds: “In instructing the jury upon the subject of possession of the fence, the court below gave this charge: ‘The title to the land is not a question for your consideration, only so far as to show to whom belongs the rightful possession of the fence.’ To this charge defendant excepted. There being no statement of facts, can this court, conceding the charge to be erroneous, reverse the judgment because of said error? If the charge is inapplicable to any state of facts, being excepted to at the time, we are left no alternative but to reverse. Code Cr. Proc. 1879, art. 685. Could there be a state of facts to which this charge would apply as the law governing the same? We think not. The rule upon this subject is stated in Johnson v. State, 7 Tex. App. 146. It is as follows: ‘The inquiry in regard to the possession should be confined to the question of the actual, quiet, and peaceable possession, and not the rightful possession of the fence.’ ” See, also, Carter v. State, 18 Tex. App. 573; Arbuthnot v. State, 38 Tex. Cr. R. 511, 34 S. W. 269, 43 S. W. 1024.

It appears from the evidence in this case that defendant was in possession of the fence, and bad been for 10 or 12 years, whether he was the rightful owner or not. It may be that Tschirhart is the rightful owner of the fence, but this question we do not determine in this character of a ease. Under the law as laid down in the cases above quoted and cited, the evidence in this ease does not sustain the conviction, and we deem it unnecessary to pass on the other questions raised.

Reversed and remanded.  