Dolan v. State

COBB, Special Judge.

Appellant was charged by information with the offense of unlawfully taking water without authority from an irrigating canal, known as the Salitral ditch, situated near Clint, in El Paso County, and tried upon an information filed on the 30th day of August, 1909, and suffered conviction with a penalty of a one dollar fine and cost of prosecution.

There are numerous errors assigned to the giving and refusing of charges, and other matters, but in view of the disposition made of the case, we deem it unnecessary to pass upon them.

The motion in arrest of judgment and to quash the complaint and information suggests to our minds a fatal defect in this: That there is no allegation in either the complaint or information of ownership of the canal or ditch from which the water was taken. We think the offense denounced in the statute under which this prosecution is had is analogous to those of theft and malicious mischief involving a trespass upon the property of others, and that, therefore, ownership should be charged. Being defective in this regard, the complaint is held insufficient, and, therefore, the cause is reversed and the prosecution is ordered dismissed.

Reversed and dismissed.