WILLIAMS v. STATE.
(No. 5240.)
(Court of Criminal Appeals of Texas.
Dec. 4, 1918.
On Motion for Rehearing, Jan. 29, 1919.)
1. Criminal Law <&wkey;1099(5) — Appeal-Statement of Facts — Time of Filing.
Where statement of facts was filed more than 20 days after adjournment of court, and there was no order in record authorizing filing of such statement after adjournment, evidence will not be considered.
On Motion for Rehearing.
2. Fences &wkey;>28(3) — Injury to — Criminal Responsibility.
Evidence held insufficient to support conviction for removing the fence belonging to another.
Appeal from Gregg County Court; E. M. Bramlette, Judge.
John Williams was convicted of breaking, pulling down, and injuring the fence of J. R. Cástleberry without his consent, and he appeals.
Reversed and remanded.
Felix J. McCord and Reagan S. Wyche, both of Longview, for appellant.
E. B. Hendricks, Asst. Atty. Gen., for the State.
DAVIDSON, P. J.
Appellant was convicted of breaking, pulling down, and injuring the fence of J. R. Castleberry without his consent.
[1]
The court adjourned on the 27th day of July, and the statement of facts was not filed until the 22d day of August, making more than 20 days after the adjournment of court. There is no order in the record authorizing the statement of facts to be filed after adjournment. The evidence will not be considered, therefore: First, because there was no order allowing’it to be filed after adjournment of the term; and, second, if there had been, it was filed too late.
The judgment will be affirmed.
On Motion for Rehearing.
On a former day of the term the judgment herein was affirmed, the opinion stating that the evidence was not before the court in such manner as to be considered. The record has been perfected.
[2] Appellant was charged with tearing down a fence belonging to Castleberry. The evidence shows that the fence seems to have been considered as on thei dividing line between the land of appellant and that of Castleberry, and for some years. Appellant gave notice to Castleberry of his purpose to move the fence, and thereafter did remove it. Castleberry preferred criminal charges against him for tearing down his (Castle-berry’s) fence. The evidence is in conflict as to who owned the fence, or rather upon whose land the fence was situated. The county surveyor surveyed the land and placed it clearly inside of and on appellant’s land. Castle-berry said the surveyor was mistaken; that he himself was a surveyor, and had surveyed the land, and it was just inside of and on his land. As we view the case, the judgment should be- reversed. It is not soi much the question here as to who was the owner of the land on which the fence was situated, but as a fence supposed to be on or near the *516dividing line. Appellant claimed the land, and a preponderance of the evidence indicates he was the owner. After giving notice that he purposed to remove this dividing fence, the law would justify him in removing it. Appellant should not have been tried for removing Castleberry’s fence. Such is the view we entertain of this case.
The motion for rehearing is granted, the af-firmance set aside, and the judgment reversed, and the cause remanded.