Yarbrough v. State

White, Presiding Judge.

Appellant was indicted, tried, and convicted under article 648 of the Penal Code for knowingly causing cattle to go within the enclosed land of one Sim Stotts, without the consent of the said Sim Stotts.

We are of opinion that the evidence not only fails to support the conviction, but that the conviction is against the evidence. Defendant did :not knowingly put his cattle in Sim Stotts’s enclosure, but the evidence shows he put his cattle in the enclosure of the Eldridges, as he believed, and had every right to believe, and where he had been in the habit previously of putting his cattle with the consent and permission of the .Eldridges.

Under the law, to have made out a case against this appellant, it ivas necessary for the State to show that he knowingly turned the cattle in said 'enclosure without the consent of the owner. This was not shown. A party might be guilty under the statute if he knowingly turned cattle into an enclosure when he did not know who the owner was. But this is not such a case. Defendant had the consent of the Eldridges; he believed they ivere still the owners. He did not know until after he had turned in the cattle that the Eldridges had sold or transferred the enclosure to Stotts, or any one else. In this state of case Ave can not see how it can in reason be said that he knoioingly turned his stock into the enclosure of Stotts without Stotts’s consent. The evidence fails to show that appellant knoivingly intended to commit the offense denounced by the statute.

Because the verdict and judgment are against the evidence, the judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.