Appellant was convicted for pulling down, breaking and injuring the fence of William Ilse.
In instructing the jury upon the subject of possession of the fence, the court below gave this charge: “The title to the land is not a question for your consideration, only so far as to show to whom belongs the rightful possession of the fence.” To this charge the defendant excepted.
There being no statement of facts, can this court, conceding the charge to be erroneous, reverse the judgment because of said error? If the charge is inapplicable to any state of facts, *122being excepted to at the time, we are left no alternative but to reverse. (Code Crim. Proc., Art. 685.)
Could there be a state of facts to which this charge would apply as the law governing the same? We think not. The rule upon this subject is stated in Johnson v. The State, 7 Texas Ct. App., 146. It is as follows: “The inquiry in regard to the possession should be confined to the question of the actual, quiet and peaceable possession, and not the rightful possession of the fence.”
Whilst it is true that the evidence'of Henry Behrens, a co-defendant, was relevant and apparently very material, and also true that it could not be used "on the trial, he being charged with the same offense, still we cannot say the court erred in refusing a new trial, he having been subsequently acquitted, and there being no statement of facts.
For the error in the charge, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered April 28, 1883.