
    BRAY v. STATE.
    (No. 5732.)
    (Court of Criminal Appeals of Texas.
    March 24, 1920.)
    1. Fences &wkey;>28(l) — Ownership of fence NOT TO BE ADJUDICATED IN PROSECUTION FOR REMOVAL OF FENCE.
    In prosecution for malicious mischief, where it is charged that defendant tore down and removed fence by cutting, in violation of Pen. Code 1911, art. 1240, court will not adjudicate question of title or rightful ownership of fence; the pivotal question being the actual possession thereof, and not title or ownership.
    2. Fences <&wkey;28(l) — One who cuts fence WHILE IN POSSESSION NOT GUILTY OF MALICIOUS MISCHIEF.
    One who cuts fence while in actual possession thereof is not liable for malicious mischief, under Pen. Code 1911, art. 1240, denouncing the tearing down and cutting of fence, though another party, not in actual possession, is the owner and éntitled to possession.
    3. Fences <&wkey;28 (3) — Evidence of title inadmissible IN PROSECUTION FOR TEARING DOWN FENCE.
    In prosecution for malicious mischief, where it was charged that defendant had torn down and removed a fence by cutting, in violation of Pen. Code 1911, art. 1240, evidence of title or ownership of the fence was inadmissible; the question being one of possession, and the evidence in such cases being confined to possession, rather than to ownership.
    4. Fences <&wkey;28(l) — Defendant in possession O'F FENCE NOT GUILTY OF MALICIOUS MISCHIEF IN TEARING DOWN.
    In prosecution for malicious mischief, where it was charged that defendant had tom down and removed and cut fence, in violation of Pen. Code 1911, art. 1240, evidence showing that defendant, and not prosecuting witness, was in actual possession of fence at time of alleged commission of crime, held fatal to conviction.
    Appeal from Harris County Court at Law No. 2; Roy F. Campbell, Judge.
    John W. Bray was charged with, malicious mischief. From the judgment rendered, he appeals.
    Reversed, and cause remanded.
    Meek & Kahn, of Houston, for appellant
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DA VXD SON, P. J.

Appellant was charged by complaint and information with malicious mischief, in that he tore down and removed a fence by cutting. There are quite a number of questions presented for revision, properly preserved by exceptions in regard to testimony and also the refusal of the court to give special instructions requested. From the view taken of the case, however, we deem it unnecessary to discuss those matters seri-atim.

The case was tried by the state on the theory that the alleged owner of the fence was the rightful or legal owner of the land upon which the fence was situated, and therefore entitled to possession, and not upon the theory of the actual possession of the fence and land. The question of title or ownership is not the pivotal question in a case of this character. A party may be entitled to the land, may be the rightful owner, yet, if he is not in actual possession of the fence alleged to be cut, but the party accused of cutting the fence is in such possession, under article 1240 of the Penal Code, the accused could not be subject to prosecution. The decisions seem to be all sufficiently clear that the question of title or rightful ownership is not the proposition, and cannot be settled in a prosecution of this character. One party may be the owner and entitled to possession, but this cannot be adjudicated under the article above mentioned, and the pivotal question upon which this character of case turns is the actual possession of the fence alleged to be injured. If the alleged owner was in actual possession of it, and the accused cut the fence, the accused would be brought within the terms of the law. The question is one of actual possession of the fence alleged to be injured. The statute was intended to protect the party in possession from trespass upon his fence by a party who was not in possession. The evidence, therefore, must be confined to possession rather than to ownership. Arbuthnot v. State, 38 Tex. Cr. R. 509, 34 S. W. 269, 43 S. W. 1024; Barber v. State, 42 Tex. Cr. R. 626, 63 S. W. 323; Fitzsimmons v. State, 62 Tex. Cr. R. 440, 138 S. W. 110; Johns v. State, 76 Tex. Cr. R. 303, 174 S. W. 610; Farmer v. State, 58 Tex. Cr. R. 171, 124 S. W. 925; Pate v. State, 46 Tex. Cr. R. 483, 81 S. W. 737; Jenkins v. State, 7 Tex. App. 146; Behrens v. State, 14 Tex. App. 121; Carter v. State, 18 Tex. App. 573. These are a sufficient number of cases, without citing others to support the proposition announced.

The evidence is voluminous. It took a wide range, involving a suit for partition and trespass to try title. Much of this testimony was clearly inadmissible.. While it bore upon the title or right to possession, it did not bear upon the question of actual possession ; the actual possession being the question upon which this case must necessarily turn. Without discussing those phases .of the testimony, it is shown that appellant went in possession of certain lands, including 80 acres of which prosecutor claimed a part. Appellant went in possession of this property in 1905, and has been in possession of it up to and including the time of the trial of this case. This 80 acres, among other things, had upon it a pear orchard, from which appellant had been gathering pears and selling the fruit for a number of years. Some of the witnesses say he had been gathering the pears and selling them for 12 years. Appellant had inclosed the land quite a number of years before this suit was instituted, and had been using it under this general fence. In 1915 there was a suit for partition, brought by prosecutor Rudersdorff and others against appellant and his wife. There is a great deal of testimony as to whether appellant was served with notice of this suit or not; the prosecutor claiming that under this partition suit he was awarded 3 and a fraction acres, and that he caused this 3% acres to be inclosed with a fence; that he personally did not inclose it. There is testimony going to show that prosecuting witness went to the premises, and appellant would not permit him to enter, but made him leave.

There is testimony also going to show that the sheriff went out, and appellant refused him admission; but the sheriff entered, and it seems under his supervision or instruction there was built a fence. Appellant was sick at the time of the erection of the fence, and knew nothing of it until after it was erected. As soon as he discovered it, he had it torn down, and used the land in connection with his dairy and as calf pasture, as he formerly had done. The prosecuting witness testified he was never in possession of it himself, personally or by agent; that he requested a Mr. Gosler to look after the premises for him. Gosler testified, but did not sustain prosecuting witness on that proposition. Gosler was the tenant and employé of appellant, as was Gosler’s wife and son, assisting appellant about his premises in various ways and in different character of work. Gosler had no possession of any of the premises, unless it was as tenant and employé of appellant. All the evidence shows without contradiction that' appellant had been occupying the premises since 1905, and that prosecuting witness had never occupied this land at any time. This particular tract claimed by prosecuting witness was used by appellant before and after the fence was erected, and appellant was in possession of it, by all the testimony in the way mentioned.

Under this state of case, and under the authorities, we are of opinion that the state’s case is not made out, and that appellant did not destroy, tear down, or cut a fence in possession of prosecuting witness. About the time, or a few days before, this prosecution was instituted, the prosecuting witness instituted proceedings in the district court of trespass to try title for this identical land, but at the time of this trial there had been no trial or decision of that case. Whether prosecuting witness is the real or rightful owner is a matter involved in litigation, and that prosecuting witness was not in possession is manifest, and that appellant was, we think, is equally conclusive.

The judgment will be reversed, and the cause remanded. 
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