
    MEISSNER v. STATE.
    (No. 4180.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    Fences <§=^28(2) — Removal — Criminal Responsibility — Indictment.
    An indictment for failure to remove a fence under article 1245, Pen. Code 1911, which did not aver that the person giving notice to remove the fence was, at the time of such notice, the owner _ of the land on which and of the fence adjoining or connected with which was 'the fence of accused, was fatally defective.
    Ed. Note. — For other cases, see Fences, Cent. Dig. § 65; Dec. Dig. <&wkey;28(2).]
    Appeal from Hamilton County Court; J. L. Lewis, Judge.
    Sam Meissner was convicted for failing to remove his fence, and appeals.
    Reversed and dismissed.
    H. E. Chesley, of Hamilton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The appellant was convicted for negligently or willfully failing to disconnect his fence and remove it from that of Otto Schrank, under article 1245, P. O. Said article is:

“Any person who is the owner of any fence wholly upon his own land to which the fence of another is adjoined, or connected in any manner, may require the owner of any such fence to disconnect and withdraw the same back on his own land by first giving notice, in writing, for at least six months, to such person, his agent, attorney, or lessee, to disconnect and withdraw his fence back on his own land. Anjr person who shall negligently or willfully fail to disconnect his fence and remove the same back upon his own land,- after the expiration of said notice, shall be fined in any sum not less than ten nor more than fifty dollars; and each ten days’ failure, after such notice shall constitute a separate offense for the violation of the prpvi-sions of this article.”

The charging part of the indictment is:

“That on or about the 25th day of January 1916, and anterior to the presentment of this indictment, in the county of Hamilton and state of Texas, one Otto Schrank was the owner of a fence wholly upon his own land, to which said fence the fence of Sam Meissner was then and there joined and was connected, and the said Otto Schrank did, on the 10th day of July A. D. 1915, 'at least six months prior to the day and date first above written, give notice in writing to the said Sam Meissner, demanding and -requiring that he, the said Sam Meissner, disconnect and withdraw his fence hack on his land, and the said Sam Meissner, on the 25th day of January, A. D. 1916, and after the expiration of the said six months’ notice, and for more than ten days thereafter, did unlawfully, negligently, and willfully fail to disconnect his said fence and recover the same back npon his own land.”

Appellant attacks the indictment on various grounds. It is unnecessary to notice but one, which we think is good.

The statute makes it necessary that six months’ notice shall be given to an accused before he can bd required to disconnect and withdraw his fence back on his own land from that of another person. It also requires that at the time this notice is given, the person who gives it shall then, not subsequently, be the owner of the fence, and it must be wholly upon his own land, and it is necessary for the indictment to make these allegations. It will be seen from the indictment copied above that the allegation does not, either directly or indirectly, aver that Mr. Schrank was the owner of the fence or land at the time he gave the notice to appellant to disconnect and withdraw his fence from Schrank’s, it alleging that the notice was ■given on July 10, 1915. The indictment does not allege that he was then either the owner of the fence or the land on which it was situated, but it alleges that, on or about January 25, 1916, he was the owner of a fence wholly upon his own land. Hence we think the indictment in this particular was fatally defective.

It, therefore, becomes our duty to reverse and dismiss this cause, which is accordingly ordered. 
      <8m»For other cases see same topic and .KEY-NUMBER in all Key-Numbered Digests and Indexes
     