Elkins v. State ( 1899 )

Appellant was charged by affidavit and information with failing to disconnect his fence from that of another, and remove the same back upon his own land, after six months notice in writing, was convicted, and appeals.

Motion was made to quash, as well as in arrest of judgment. This information was brought under article 798, Penal Code, which requires the owner of any fence, whose fence is upon the land of, and connected with that of, another, to remove the same after six months notice under the terms of the statute. The statute provides that each ten days failure after such notice shall constitute a separate offense. We suppose the Legislature intended to make this ten days failure to remove the fence, which is said to constitute a part of the offense, to apply only after the expiration of the six months notice. It was certainly not intended that the party should be guilty for every ten days during six months required to perfect the notice. The information fails to negative the fact that the fence was removed within the ten days after the expiration of the six months notice. It occurs to us that the information should have charged that the fence was not removed within ten days after the perfection of the notice. If it takes the failure to remove the fence for ten days to constitute the offense, then this must be alleged. This has not been done, and, in our judgment, the information is defective in this respect; and the judgment is reversed, and the prosecution ordered dismissed.

Reversed and dismissed.