Barber v. State ( 1901 )

Appellant was convicted for causing cattle to go within the enclosed lands of another, without the consent of the owner, etc., and his punishment assessed at a fine of $25.

A brief summary of the facts discloses that the alleged owner, Kuykendall, had bought the land in question in the spring of 1900, and, during the summer, had enclosed it, along with quite a lot of other land; that his purchase was from the Burroughs estate; that he had placed an agent in charge of these pasture lands; that this agent resided in the pasture while Kuykendall resided at the county seat some miles distant. Appellant claims to have bought the land in question in the fall of 1900, subsequent to its being enclosed by Kuykendall. At the time of the purchase, he was fully aware of the possession and ownership of Kuykendall. After making his purchase, he drove his cattle into the enclosure and turned them loose upon the land for grazing purposes, and notified Kuykendall's agent of the fact that he had done so. It is contended, this does not show ownership in Kuykendall, and that the information should have negatived the consent of Nowlin, Kuykendall's agent, in possession. We think the information is sufficient upon this point. Kuykendall was the owner of and in possession of the land as well by his agent as if he himself had lived upon it. The possession of property, under article 794, Penal Code, under which this information was brought, is a possessory right and not one of title; and we believe the information was sufficient to allege the ownership in the real owner. The possession of the agent, Nowlin, was the possession of the owner, Kuykendall, and sufficient under this case. It is claimed that appellant did not violate the spirit of the statute, because of his subsequent purchase and claim of the land, and that thereby, if he did not have the rightful authority to place his cattle upon the land, he was justified in believing he had that right; and, if it was a violation of the statute at all, it was simply a violation of its letter and not of its spirit. We do not believe this position is correct. He knew of the claim and ownership of Kuykendall at the time he placed his cattle in the pasture, and testifies himself that litigation was pending between himself and others with reference to lands he had purchased in this pasture, and that at the time of his purchase and at the time he turned the cattle in the pasture, the prior purchaser had actual possession of the land and enclosure. This was not like Yarborough's case, 37 Texas Criminal Reports, 357, where the party charged with violating the statute was the owner, and in possession, of 640 acres of land enclosed in one of the large western pastures. If appellant's case came within the rule there announced, he would have the right to turn his cattle into the pasture, as it was held in that case. It was unquestioned that Yarborough owned the 640 acres enclosed in the large pasture, in which he turned his cattle and on which he resided. In that case, the owner of the enclosed land has the right to use it, and could not be debarred that right by the act of others enclosing it in a general pasture. But this is not a case of that kind. Appellant's title to the land, if it be a title, was acquired subsequent to the purchase by another party, who had enclosed and was using the land. We believe the evidence justifies the conviction. Daley v. State, 40 Tex. Crim. 101. The judgment is affirmed.

Affirmed.

BROOKS, Judge, absent.

ON MOTION FOR REHEARING.