Thornton v. State (156 S.W. 210, 1913)

DAVIDSON, P. J.

The Assistant Attorney General moves to dismiss the appeal for want of a sufficient recognizance.

An'inspection of the recognizance shows that the motion is well taken, and must be sustained. The recognizance recites that appellant stands charged with the offense of knowingly turning stock on the inclosed lands of another without his consent, but it does not show that appellant had been convicted or the amount of the judgment of conviction as the statute requires. Appellant may remedy this by filing within the time allowed by law a sufficient recognizance, and by this means reinstate his appeal; but as the matter is presented the motion must be sustained.

Wherefore it is ordered that the appeal be dismissed.

On Motion for Rehearing.

On a former day of the term the appeal herein was dismissed because of want of proper recognizance. Since the dismissal a sufficient recognizance has been filed, and the cause is reinstated.

On the face of the matter’s presented by the record for- disposition there are several questions of importance. However, in view of the evidence, we deem it unnecessary to discuss the various legal questions. The evidence is not controverted that appellant rented the place from Smith and his daughter Mrs. Johnson for the year 1911; that he went in possession and raised crops upon the premises, which consisted of about 100 acres. In August there was a severe hailstorm which ruined the cotton crop to such an extent there were only two or three bales of cotton raised on the place. There was some cane, kaffir corn, and maize planted, which crops had been gathered at the time of the alleged turning in of the stock in the inclosure, which latter act occurred in November, 1911. There was no authority reserved in Smith or Johnson to control the premises, and no stipulation of any kind that appellant could not turn his stock in the inclosure. It is in evidence, and undisputed, that no injury was done to any crop by the stock being turned in the inclosure. There was a little cotton still ungathered at the time, and when Mr. Smith first objected to the horses being turned into the inclosure about November, 1911, appellant stretched a wire across the field so they could not reach the cotton. During the day his family, who were gathering cotton, did not permit the stock to enter that part of the inclosure, and at night they were taken out, and it seems to -be undisputed that no injury was done any crop. All the crops of every kind had been gathered prior to the time -of turning the stock into the inclosure, except some scattering cotton. The indictment alleged joint possession in Smith and Johnson with appellant of the premises. There is no evidence to support this allegation. The uncontroverted evidence is that appellant was in possession of the 100 acres for the entire year, which it is agreed lasted from 1st of January to 31st of December, 1911. It is also in evidence that another party rented from Smith the adjoining farm, or one across the creek from that rented by appellant. That renter turned his stock in upon the farm he had rented without objection or protest from Smith. This is undisputed. It is further in evidence and .not disputed that neither the land nor the crops were injured by turning the horses in the inclosure by appellant. The 100 acres was controlled by and in possession of appellant for the year by the terms of Ms tenancy. He had a right to control the premises for all reasonable purposes. Under all the authorities, appellant ought not to have been convicted on the facts. Coggins v. State, 12 Tex. App. 109; Jones v. State, 18 Tex. App. 366, and numerous other cases unnecessary here to cite. None of the cases are in conflict with the two cases cited, and in fact they are all in harmony with and support these cases.

The motion for rehearing is granted, the judgment is reversed, and the cause is remanded.