Warder v. State

DAVIDSON, Judge The Twenty-first Legislature by an act passed approved April 6, 1889, denounced a penalty against any person who jointly owns “ any separating or dividing fence, or who is in any manner interested in any fence attached to or connected with any fence owned or controlled by any other person, to remove the same except by mutual consent or as hereinafter provided.” Acts of 1889, pp. 45, 46. It is also provided that “any person who is the owner or part owner of any fences connected with or adjoined to any fences owned in part or in whole by any other person, shall have the right to withdraw or separate his fence or part of fence from the fence of any other person or persons in this State; that such person who desires to withdraw or separate such fence from the fence of any other person shall give notice in writing to such person, his agent, or attorney, or lessee, of his intention to separate or withdraw his fence or part thereof for at least six months prior to the time of such intended withdrawal or separation.” Same authority. If the party removing or separating the joint fence should have obtained the consent of the other joint owner or owners before removing the said fence, or removed it with the consent of the other joint owner, he would not be guilty of the offense denounced in this statute. If he has not obtained the consent of the owner or joint owner to such removal, then it is incumbent on him to give the statutory notice of his intention to remove such fence before he would be authorized to remove it. If he has not given the notice to nor obtained the consent of the owner or joint owner of the fence he can not remove or separate the fence. Where the State seeks a conviction under the above cited statute it is incumbent upon the prosecution to prove the want of consent of the owner or joint owner to the removal of the fence, as well as the failure of the party prosecuted to give the statutory notice before such removal [536] of the fence. Without this proof the State must fail of the desired conviction. If it be necessary to make this proof in order to secure a conviction, then it becomes a condition precedent to the conviction that the want of consent and failure to give notice must be alleged in the indictment, information, or complaint charging the offense. Every ingredient of a statutory offense necessary to be proved by the State must be alleged in the indictment or information. In charging the offense the statutory definition must be followed at least substantially. Willson’s Grim. Stats., sec. 1955. In this case this has not been done. Appellant was tried and convicted under the above quoted statutes. The complaint and information are both defective, and when taken together do not state the offense denounced by said act of the Legislature. The Assistant Attorney-General has confessed this error, and in doing so has tersely and concisely stated the fatal defects in the complaint and information, and we here quote it: “The com- plaint and information state no offense—the complaint, in that it does not allege that the removing was without the consent of the joint owner; the information, in that it neither alleges the want of consent nor want of notice. It is the want of consent and the failure to give notice that is the gravamen of the action. In the absence of an allegation charging such want of consent and such failure to give notice the information charges no offense.” For the errors noticed, and because the information and complaint neither charge an offense against the law, the judgment is reversed and this prosecution is dismissed. Reversed and dismissed. Judges all present and concurring.