Phillips v. State (263 S.W.2d 159, 1953)

BELCHER, Commissioner.

Appellant was convicted for unlawfully hunting wild deer by the aid of a spotlight ■at night, and his punishment was assessed •at thirty days in jail and a fine‘of $100'.

Emmett Woldorff testified that he was a .game warden, and while with Game Warden Koleffel between 12:00 and 1:00 o’clock a. m. on March 1, 1953, in Colorado County, Texas,'they saw some m'eri travelling’in:a ■car along a- road; that they followed theta until the men stopped and shined a spotlight into a field on some- deer';' that while they were about 100 yards from the men, they heard a loud report and saw the flash from ■& 'gun barrel, which was'fired from' the driver’s side of the car; that they went immediately to the car and found appellant Royce Phillips standing on the ground near the steering wheel, Elroy Heinrich and Marvin Pleinrich standing nearby; that 'these men fled in the car and were overtaken about two miles away and arrested; that they found rifles of the type used for Irunting deer, other gunS, ammunition for these guns, and an electric light in the car; that there wás a spotlight on the driver’s side of the car. tie ■ further testified 'that they found a small' wil'd- deer in the trunk •of the car which 'had bedn dead about two hours; that they went out into'an1 oat patch •at the place and in" the "direction in 'which they had seen the flash -of the -gun and there, found a dead deer-that' had been recently shot with a rifle, ■ ■■

Appellant did not testify and offered no testimony in his behalf- other than two •character witnesses. .

Appellant contends that the court erred in allowing a: special prosecutor to participate in the trial of the. case over his' objection. '

Counsel other-than the district or county attorney may appear, and prosecute