¶1— This is a ..prosecution under section 5624 of-the Code for unlawfully, maliciously or negligently throwing down or breaking the fence or enclosure of another. The offense being against the possession rather, than against the ownership of land, the indictment, in this case properly laid the fence in the person who was in possession and the court properly refused to go into the inquiry whether a third person had title to the premises — Hill v. State, 104 Ala. 64.
¶2•The wdtness W. D. Whetstone having testified for the defendant for the purpose of showing that the fence in question was erected across a public road, that he first knew- the road twenty-five years before, that it had been used ever since till the fence was built across it by all persons in the neighborhood without objection or interruption, and that he, witness, “traveled said road whenever he wanted to,” it was not error to allow the solicitor to ask the witness on cross-examination “if the owner of the land had objected to your traveling said land, would you have gone on it?”
¶3The only intent necessary to infect defendant’s act with criminality was the intent to break the inclosure *89of' another. This was a criminal intent' although the defendant might have acted under the mistaken- belief that he had a.right to break the inclosure.- The charge refused to'defendant-was, therefore, to say the least, misleading, and the1- court committed ho eiTor in its - action upon it.
¶4Affirmed.