White v. State , 27 Tex. Ct. App. 638 ( 1889 )

Willson, Judge.

This conviction was had under article 68B of the Penal Code, the indictment charging that the defendant did “wilfully and mischievously injure and destroy- certain agricultural property, to wit: a certáin fence which then and there surrounded and enclosed a farm belonging to J. B. Watson, said farm and fence then and there being in' the possession of said J. T. White, who had rented the same from the said J. B. Watson, the said White being then and there the tenant of said Watson, the said Watson being the owner in fee of said land and fence, said injury and destruction being done in violation of article 683, of the Penal Code of the Be-vised Statutes of the State of Texas, and being done in such a manner as that the same does not come within any of the offenses against property otherwise provided for by said Penal Code.”

Opinion delivered May 18, 1889.

Exceptions to the indictment were overruled, one of said exceptions being that the facts as charged constitute an offense under article 684 of the Penal Code, and are therefore not within the purview of article 682. This exception, we think, should have been sustained. The offense declared and made punishable by article 683, must be one that does not come within the description of any of the offenses against property otherwise provided for in the Penal Code. Injury to a fence comes within the description of two other offenses against property provided for in the Penal Code, to wit, the offenses described in articles 684 and 684a, and under one or the other of these articles any injury done to a fence must therefore be prosecuted, and not under article 683.

■ Under the issues presented by the evidence the court should have given the special charges requested by the defendant, they being correct in principle, and demanded by the evidence. (Hooks v. The State, 25 Texas Ct. App., 601.) The refusal of the court to give such Instructions was excepted to by the defendant, and constitutes ground for reversal.

The judgment is reversed, and because the indictment is bad in substance the prosecution is dismissed.

Reversed and dismissed