Tegarden v. State

• Decision Date: 07 December 1914
• Docket Number: (No. 47.)
• Citation: 171 S.W. 910
• Parties: TEGARDEN v. STATE.
• Court: Arkansas Supreme Court

171 S.W. 910

TEGARDEN v. STATE.

(No. 47.)

Supreme Court of Arkansas.

December 7, 1914.

Appeal from Circuit Court, Marion County; Geo. W. Reed, Judge.

U. S. Tegarden was convicted of cutting a fence on the lands of another, and he appeals. Reversed, and information dismissed.

Appellant was convicted upon an information filed before a justice of the peace, in which it was charged that he unlawfully, willfully, and maliciously cut the fence of the inclosed lands of W. H. Bryant.

A question in the case is whether the prosecution was had under section 1913 of Kirby's Digest, or under Act 275 of the Acts of 1907. This last-named act provides that, if any one shall willfully and maliciously cut, or otherwise destroy, any barbed or woven wire fence, or break or burn the posts thereof, he shall be guilty of a felony, if the damage done to the fence and crops amounts to $10, or more, and a misdemeanor if the damage is less than $10. It is conceded by the state that appellant could not be convicted under this act, for the reason that the proof does not show that the act of cutting the fence was willful and malicious. Upon the contrary, it is denied that the conviction was had under this act, and it is insisted that the conviction was properly had under section 1913 of Kirby's Digest, the provisions of which, so far as they are applicable to the information filed in this cause, are as follows:

"If any person * * * shall pull down or break the fence or leave open the gate of the farm, plantation or other inclosed ground of another, the party so offending shall be guilty of a misdemeanor. * * *"

The evidence upon the part of the state was to the effect that appellant and Bryant were the owners of adjoining tracts of land, and that each claimed title to their respective tracts by conveyances from a man named Hurst. The line between the two tracts of land was in dispute, and when a survey was made it was found that Bryant had his fence set over some distance on appellant's land. It had been agreed that the county surveyor should run this line, and the parties were present when he did so and located the corner which determined the boundary. Bryant, at the time, called attention to the fact that the corner had not been properly located, and, upon the verification of his calculation, the surveyor discovered that the corner had not been properly located, and a post which had been driven down to mark this corner was reset; but, even after it had been reset, it appeared that Bryant's fence was still some distance over on appellant's land. After this appellant undertook to agree with Bryant on the erection of a fence on the true line, but Bryant never assented to this, nor did he ever agree to resetting his fence, and he testified that he did not know that appellant was going to cut the fence until after he had done so.

The proof on the part of appellant is to the effect that a creek ran through this land near the disputed corner, and that it was necessary to cut this fence to drive upon appellant's land to distribute the posts for the erection of the new fence, and that, after...