The defendant was indicted and convicted for a violation of section 3888 of the Criminal Code. Ownership of the fence was laid in Elijah Monroe. The evidence shows that the interest of Elijah Monroe, was that of a tenant, in possession, and holding by virtue of an unexpired lease. The evidence shows also that the fence was constructed of rails and was about four feet high; and it was not controverted that the defendant threw the fence down, and that he failed “immediately to rebuild or repair the same.” Section 1364 of the Civil Code, which defines a lawful fence to be five feet high, has no application when a person is indicted under section 3888 of the Criminal Code. The law imposes no duty upon any person to construct his fences five feet high. If the owner is satisfied to build his fences or make his enclosures less than five feet high, that fact does not license persons to enter upon his premises and unlawfully throw them down, and leave them down. Fences or enclosures less than five feet high are within the meaning of section 3888 of the Criminal Code. When one person sues another under the statute to recover damages resulting from a trespass, by the cattle of another breaking into his enclosure, he must show that he had a lawful fence as prescribed by the Civil Code. The ownership was properly laid in the tenant, who at the time was in legal possession and control, and entitled to the use of the fence. Whatever may have been the motive of the prosecutor, in prosecuting the defendant, "whether actuated by malice or not, could not affect the *67question of the guilt or innocence of the defendant. The feelings or motive of the prosecutor might and should be considered by the jury, in weighing his evidence ; in determining whether or not the defendant was guilty as charged.
The facts of the case require a construction of the statute , under which the indictment was preferred. It reads as follows:
“3888 (4413, 4420). Maliciously or negligently breaking or destroying fences. — Any person, who unlawfully, maliciously, or negligently destroys, throws down, or breaks any fence or inclosure of another, and fails immediately to rebuild or repair the same, must, on conviction, be fined not less than twenty, nor more than five hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months ; and the fine goes to the injured party.”
.. Being a peual statute it must be strictly construed. Unless the fence or enclosure of another is unlawfully destroyed, thrown down or broken, the statute is not violated although the person may fail immediately to rebuild Or repair the same. So,if one person unlawfully throws down the fence of another, if he immediately repair or rebuild the same, he can not be convicted under this statute. The facts in this case show that the prosecutor had confined the cattle of the defendant in a pen, where they were found by him. There is nothing in the record to show that the prosecutor had any authority to pen or detain the defendant’s cattle. If the cattle of the defendant had unlawfully damaged the crops of the prosecutor, he had his legal remedy, but such a claim did not authorize the party damaged, to seize upon and detain the cattle of the defendant until compensation had been made. The defendant had the right under the circumstances to turn his cattle out of the pen. The prosecutor set up no legal claim or right to hold them. His only claim was for compensation for damages done to his •crop.” No threats nor intimidation were used, and nothing said or'done which tended to a breach of the peace. Street v. Sinclair, 71 Ala. 110.
It may be that there are local statutes applying to some parts of Hale county, which authorize ' the impounding or detention of another’s cattle, under the circumstances •under which the cattle were seized and detained by the *68prosecutor, but none has been cited. There is nothing, however, in the record to show in what part of Hale county the prosecutor lived, or the fence was located. We are compelled to consider the case under the general law of the State. When thus considered the defendant was entitled to the affirmative charge, and should have béen acquitted.
Reversed and remanded.