Giddings v. State , 47 Tex. Crim. 360 ( 1904 )

DAVIDSON, Presiding Judge.

Appellant was charged with pulling down and injuring the fence of Joshua Mayes, without his consent. Without going into a detailed statement of the evidence, it is shown appellant, if he violated the law, did so by pushing loose a couple of planks from a post, and pulling up between these planks and the top of the post chain, so as to release a boat fastened to the post, which he used in crossing the Trinity River at Wallisville. Neither end of these planks were torn loose from the post to which they were fastened, but simply the planks at the middle post were pushéd back far enough to permit the chain to be slipped up over the top of the post. Whatever injury there was to the fence is found in that statement. Mayes, the owner of the boat, testified to his non-consent; but the facts all show this boat had been used by the public pretty generally in crossing the Trinity River, and had been so used for a long time; and that appellant, as well as the people in that section, used it whenever they saw proper. There had been some criticism of the county judge, at least, there was a conversation in which a request was made to put in a public ferry boat; but this was discouraged upon the theory that people were using Mayes’ boat, and the matter thus rested. It seems to be uncontroverted that the public generally had been using this boat until within a short period of the time appellant is shown -to have used it, with knowledge and consent of Mayes, and he seems to have been unaware that Mayes had decided the public could no longer use it. - Coming from the west side' of the river, where he had been surveying some land as county surveyor, he found the boat in the condition above indicated, and pushed back the planks as stated, as a means of loosening the boat to cross the river at this point, which was about two hundred yards wide; that he used the boat to convey himself across the river, and swam his horse. We do not believe these facts justified the conviction. It seems, as before stated, that appellant and the people generally used the boat without any protest, in fact with the consent of the owner for quite a length of time; and from this fact, appellant, in the absence of notification that said owner had changed his mind, would be warranted in assuming his consent. Our statute provides that, if an accused does anything that would be otherwise criminal under a mistake of fact, believing the fact to exist, and that he had a right to act under it, it would not be criminal. We believe that article of our Penal Code applies here, for, as we understand the testimony, appellant was clearly of the impression that he had the right to use the boat, as he and the community had been doing for quite a length of time. We do not believe the facts justified the conviction, and the judgment is reversed and the cause remanded. ■

Reversed and remanded.