Appellant was indicted by the grand jury, charged with unlawfully breaking and pulling down the fence of another without the consent of the owner. He was adjudged guilty, and his punishment assessed at a fine of ten dollars.
There are but two grounds in appellant's motion for a new trial, the first being that the court erred in refusing to give special charge No. 1 requested by defendant. There is no such charge in the record. The record contains no special charge, consequently we can not consider this ground.
The second is based on the insufficiency of the evidence. The testimony for the State shows that defendant tore down the fence of John Odell. Defendant, in his testimony, admits that he did so, but says it was necessary to get his wagons through the gates, and while he left the fence down that night as he had no tools with which to repair it, he intended to return the next morning and rebuild the torn down place, and he would have done so if he had not met Mr. Odell, who informed him that he had rebuilt the fence. Mr. Odell denies appellant telling him this until he informed him he was going to prosecute him. Had the defendant requested a charge presenting this issue, it should have been given, but in the absence of any requested charge, and in the absence of any exception to the charge as given, this being *Page 84 a misdemeanor, under the decisions of this court, we would not be authorized to reverse the case because of this omission in the charge.
If in fact, it was a case of necessity, and defendant really intended to return and rebuild the fence as soon as he could go and get tools to do so, the conviction would seem to be a hardship, but this issue of fact is one for the jury to pass on under appropriate instructions, and in misdemeanor cases, it is incumbent on the defendant to ask special charges presenting his theory, and except to the failure of the court to properly submit the issue. This not being done, the judgment must be affirmed, and it is accordingly so ordered.
Affirmed.