Card v. State

86 So. 460 | Miss. | 1920

Sykes, J.,

delivered the opinion of the court.

An affidavit was made out against the appellant before a justice of the peace court for Avillfully, unlawfully, and maliciously tearing down and moving a cross fence, presumably under section 1889, Code of 1906 (section 1132, ITemingwav’s Code), which relates to a Avillful or malicious trespass upon real or personal property of another. Appellant Avas convicted before the justice of the peace, and appealed to the circuit court, in Avliich latter court he Avas also convicted, and from which judgment of conviction he prosecutes this appeal.

The testimony for the state Avas to the effect that the appellant agreed with the prosecuting witness that this Avitness could maintain a fence, a portion of which was Avholly situated upon land rented by the appellant; that in pursuance of this oral agreement the‘prosecuting Avitness repaired this fence, and used the land under fence as a pasture; that some time thereafter the appellant told the AA'itness that he Avanted him to move the fence, but the Avitness declined to do so. Some days thereafter the appellant tore down several panels of this fence, situated Avholly upon land rented by appellant. There is also some testimony in the record that another part of this fence, Avhieli Avas situated on the dividing line betAveen lands rented by the appellant and the prosecuting witness, Avas also torn down, hut the witness did not know by whom this part of the fence was torn doAvn. Under this testimony of the state the appellant Avas guilty of no offense. The state’s witness avIio repaired the fence was merely a gratuitous license, and this license Avas reArocable at the pleasure or Avill of the licensor, the appellant. 25 Cyc. 652, 18 Am. & Eng. Ency. of Law (2 Ed.), p. 1140; Pitzman v. Boyce, 111 Mo. 387, 19 S. W. 1104, 33 Am. Rt. Rep. 536.

It is the contention of the state in this case that, while the appellant could revoke this license at pleasure, before he could remove the fence it Avas his duty to have given the licensee notice of the revocation. We are not called upon in this case to decide whether or not this notice is necessary, because the testimony of the licensee is to the effect that this notice was given him, and that he declined to remove the fence. In view of the fact that no peremptory instruction was requested by the appellant in the court below, the judgment of the lower court will be reversed, and the cause remanded.

Reversed and remanded.