¶1The information charges that the defendant “did wilfully, without the consent of the owner, pull down the fence of Elizabeth Ervin and Bob Ervin, said fence being then and there the property of the said Elizabeth Ervin and Bob Ervin.”
¶2The evidence shows that the premises enclosed by this fence, at the time the fence was pulled down, were in the possession and under the control of one Biley Wetsel, who had rented the same for and during the year 1881, and whose lease thereof had not expired at the time of the act complained of. By virtue of this renting contract, Wetsel was the legal owner of the fence in question until the first day of January, 1882, and, therefore, there was a material variance between the allegation in the information and the proof as to the ownership of the fence at the time it was pulled down.
¶3But, if there was no such variance, we still think the conviction could not stand, because there was no sufficient proof - Of the want of consent on the part of Elizabeth Ervin, one of the alleged owners of the fence. She was not called to testify in the case, and her absence was not accounted for; and her want of consent to the pulling down of the fence is not even circumstantially established.
¶4The judgment is reversed and the cause remanded.
¶5Reversed and remanded.