The defendant was convicted of the offense, of pulling down the fence of another, without his consent. (Penal Code, art. 684.) The fence was alleged to be the property of J. W Fleming. Tlio evidence showed that the fence was a division fence between the enclosed lands of said Fleming and one Mason, and the joint property of both Fleming and Mason; and that, at the time the fence was pulled, down by defendant, he, defendant, .was the tenant of Mason, and in possession of Mason’s land, and that one Smith was the tenant of Fleming, and in possession of Fleming’s land. It was shown that defendant pulled the fence down without the consent of Fleming or his tenant Smith.
Upon the trial the defendant’s counsel requested the court, among other things, to instruct the jury as follows: “if two men jointly own a division fence, then, if one of said joint owners break and pull down a part of said fence to pass through, then said joint owner is not criminally liable upon the charge or information of breaking and pulling down the fence of the other joint owner.” The same principle was embraced in other special charges asked by the defendant. The court refused to instruct the jury in accordance with this view, but instructed the jury substantially, that if the fence was jointly owned by Fleming and Mason, and the defendant pulled it down *256without the consent of Fleming, he was guilty of the offense charged.
The only question arising in the case for our determination, is: Is it a violation of art. 684 of the Penal Code for one joint owner of a fence to pull it down without the consent of the other? The defendant being a tenant of Mason, one of the joint owners of the fence, is, for all the purposes of this case, invested with all the rights of Mason. The precise question here presented has never been determined by this court. The allegation of ownership in the information, alleging the sole ownership of the fence to be in Fleming, is sufficient, notwithstanding the evidence showed a joint ownership between him and Mason. (Code Crim. Proc. art. 426.) A part owner of property cannot be punished for the theft of such property, unless the person from whom it is taken be wholly entitled to the possessidn at the time. (Penal Code, art. 131.) But, on the other hand, one of the part owners of a house is not permitted to burn it. (Penal Code, art. 660.) It is argued by counsel for defendant that if a joint owner of property cannot steal it, a fortiori he cannot be held criminally responsible for destroying or injuring it. While we concede the plausibility of this argument, we do not agree to the soundness of it. If the position is correct, it would relieve a part owner from criminal responsibility for arson committed upon property of which he was a part owner.
We think the just and true rule is that one joint owner of property must not be permitted to so use it, or deal with it, as to injure the other joint owner. The fence in question, while it was the joint property of two persons, also divided and partly enclosed the several lands of those two persons, and was erected and kept up for the protection of the several, not joint crops of those two persons. What justice or right would there be in permitting one of these joint owners to take away from the other the *257protection which the fence afforded to the crops and land of the latter, which are not joint property ? We can see no good reason why a joint owner of a fence should be exempted from the penalties of this statute. If the Legislature' had so intended, it is reasonable to suppose that a provision would have been inserted in the statute, as was done in the statute defining and punishing theft, that a part owner should be exempt from the operation of this law. We think the judge who tried this case charged the law of the case correctly, and that the defendant was properly convicted.
The judgment of conviction is accordingly affirmed.
Affirmed.