The appellants were tried in the County Court of Clay, upon an information charging them with unlawfully, willfully and maliciously breaking and defacing a certain fence, the property of Lewis Feith, and situate on his land.
Appellants were found guilty and fined, and they bring the case to this court by appeal. It is urged that the evidence fails to sustain the charge. We have examined the testimony, and our conclusion is that the evidence does not sustain the charge made against the appellants. It will be observed that they are charged with breaking and defacing the fence in controversy. The testimony shows that Avns was seen kicking the fence, and Kluthe was seen pulling the wire on the fence, but fails to show that either broke or defaced the fence. The evidence discloses that the fence was broken, hut does not, except by mere inference, connect these boys with the breaking.
It appears that the fence was situated in the line of what was claimed to be a highway, and this affords a sufficient motive in some one to break and injure the fence; but we do not think the testimony sufficient to fasten the breaking of the fence upon the appellants. The judgment of the Circuit Court is reversed and cause remanded.
Heversed and remanded.