Luter v. State , 32 Tex. Crim. 69 ( 1893 )

The information charges, that appellant "did then and there, by threatening words and by acts of intimidation, prevent, and attempt to prevent, Willis Lipscomb from engaging and remaining and performing the duties of a lawful employment, against the peace and dignity of the State."

1. The motion in arrest of judgment was well taken. The information should have set forth the lawful employment in which Lipscomb was engaged. As stated, it is but the conclusion of the pleader.

2. It is contended that the evidence is not sufficient to support the conviction. We believe this position also well taken. Lipscomb testified, that "Mr. Parks has me employed to keep his pasture gate closed at the point where the Goliad and Victoria road enters said pasture. I reside in a house near the gate, and cultivate a small piece of ground there. On the 21st day of February, 1892, defendant, Buckner Luter, passed through the gate, and did not fasten it. I called to him, and told him to fasten the gate. He replied that he would not do it, and got mad. He and I had a quarrel, and he finally said to me, 'If you do not quit stopping me when I come through this gate, I will run you off through this timber, and make you burst your brains out against one of these trees.' " The defendant closed, but did not fasten the gate, when he passed through.

It would seem that the whole duty and scope of Lipscomb's employment was to keep Parks' gate closed. It did not comprehend any obligation on his part to abuse or raise difficulties with the passing public. If so, this was certainly not a lawful employment, and in threatening to make him run against a tree, defendant did not interfere, or threaten to interfere, with his lawful employment.

Because the information is fatally defective, the judgment is reversed and the cause dismissed.

Reversed and dismissed.

Judges all present and concurring.