The appellant was prosecuted by information in the County Court for an alleged violation of the act of April 23, 1873. The information charges that in Gray-son County, State of Texas, on or about the fifteenth day of December, 1878, “ one J. S. Jenkins, late of said county, and State, did unlawfully, maliciously, and mischievously tear down, remove, and injure the fence of one J. S. Pattie, without the consent of said Pattie, to the injury and damage of him, the said Pattie, in the sum of twenty-five dollars.”
The only question raised by the charge of the court, and by the instruction asked by the defendant and refused by the court, and embraced in the defendant’s bill of exceptions, is as to the possession of the land upon which the fence stood at the time of its removal. The question as to who was rightfully in possession of the land was attempted to be put in issue on the trial, by the defendant, but the court properly, as we think, restricted the inquiry to the question of actual possession. The court could not in this form of proceeding determine the question as to the right of possession.
There was some conflict in the testimony as to who had possession of the property at the time of the alleged trespass upon it. The court charged the jury that if they believed from the testimony that J. S. Pattie was in the actual, quiet, and peaceable possession of said fence at the time it was pulled down, etc., they would find the defendant guilty; and also charged the jury that if they believed from the testimony that the defendant was in actual, quiet, and peaceable possession of the fence, then they would find him not *150guilty. The jury found the defendant guilty; the court entered judgment on the verdict, and refused a new trial. We find no error in the proceedings, presented in such manner as that we are authorized to inquire into it ;• and therefore the judgment is affirmed.
Affirmed. .