State v. Hays

85 S.W. 127, 110 Mo. App. 440, 1905 Mo. App. LEXIS 55

• Court: Missouri Court of Appeals
• Decided: February 7, 1905
• Status: Published

Opinion

GOODE, J.

— This appellant was convicted of tearing down part of a cross fence between his farm and an adjoining one. The fence belonged to his neighbor and he had no interest in it. The information on which he was convicted counted on section 1958 of the Revised Statutes of 1899 and the main point relied on for reversal is that the fence did not join to the fence running at right angles to it and hence was not an inclosure. The building of the fence was in progress when the defendant tore it down. The neighbor was running it to join another fence but the supply of rails gave out before he had extended it to a junction with the other, and while he ivas waiting for more rails the defendant committed the depredation. The section of the statute on which the prosecution is founded mates it a misdemeanor to wrongfully or maliciously pull down, injure or destroy part of a fence. The word ‘ ‘ inclosure ’ ’ is used .in the statute at one place, but disjunctively. It is an offense, too, to throw down any bars or fences inclosing the land of another. But aside from those clauses there are other provisions by which it is constituted a crime “to pull down, injure or destroy a gate, post, railing or fence, or any part thereof.” The defendant committed a crime if, as the jury found, he pulled down the fence of his neighbor, though it was not yet so far constructed as to inclose the neighbor’s land.

A question is raised about the cross-examination of one or two of the defendant’s witnesses who testified as to his reputation for peace and quiet. One of those witnesses volunteered the information while testifying in chief, that the defendant had been put under bond to keep the peace, and another made the same statement on cross-examination. No exception was saved to this testimony.

The judgment is affirmed.

All concur.