Bird v. State

Appellant was convicted under article 366, Penal Code, for cutting certain shrubs, etc., growing within an inclosure which was a graveyard. Appellant complains that the court in instructing the jury, when he come to apply the law to the facts of the case, omitted the word "wrongfully." He contends in this connection that he presented matters of defense, which, if the jury believed, should acquit him; but that the court simply told the jury, if appellant cut any shrubbery growing within an inclosure of any graveyard in or near the city of Corsicana, to find him guilty. We believe it was the duty of the court to use in connection with said charge the word "wrongfully," it being the language used in the statute in defining the offense.

Appellant also contends that the evidence clearly shows that said graveyard was not inclosed, but that one string of fence was gone, and it was broken down in other places. This was the state of the evidence. The jury appear to have been bothered in regard thereto, and made inquiry of the court; whereupon the court instructed them, "that an inclosure is an obstruction intended to keep off and cut out trespassers." And the court in the same connection refused the following requested instruction: "You are further instructed that the word inclosure means the act of inclosing, the separating of land from common ground into distinct possession by a fence. Now, if you have a reasonable doubt as to whether said graveyard was an inclosure as above defined, you will acquit defendant, and so say by your verdict." We think in view of the definition of the offense, that is, the definition is to the effect that there must be an inclosure for the place of burial, and if any person shall cut, destroy or remove any tree or shrub, growing within said inclosure, he shall be punished, etc., we believe the requested charge should have been given, as it embodies a correct and pertinent definition of inclosure. Moreover, in the view we take of the evidence, the plot of ground which had years before been used as a place for the burial of the dead was out of repair, and not entirely closed by any fence or obstruction. We are inclined to the view that the conviction could not be sustained.

Appellant also requested an instruction as to his good faith in cutting some bushes or shrubs which were in the graveyard; that the graveyard was neglected and had grown up in a wilderness; was situated near his house and was the rendezvous of polecats that preyed on his chickens; and what he did was merely to cut down some of the bushes in order to get out the polecats. However, it is contended by the State that this would be no defense under the case of Phillips v. State, 29 Tex. 226. That was a case where the defendant removed a line of fence from around a graveyard, and left the graveyard in his field. The court in that connection, citing Bishop's Crim. Law, sec. 250, with approval, say: "It is a well settled principle of law that when a man does a thing prohibited with the intent the law forbids, it will not avail him that he also intended ultimate good; as on an indictment for obstructing a road, that he has opened a better way." Of course where one intends the wrongful act prohibited, other good intention will not avail him. But we do not believe the principle is applicable to the state of case here presented. There appellant claimed that by taking the graveyard into his field he inclosed it with a better fence than that which formerly existed. Here the proof showed that the bushes and shrubs, which constituted a tangled wilderness (being the rendezvous of varmints preying on his fowls), were cut with intent to get at the varmints. Even if there was proof of actual injury, it occurs to us there was lacking any intent to desecrate or injure the graves, even if the graveyard had been properly inclosed. At any rate, the jury should have been left to determine whether or not the act was wrongfully done.

For the errors discussed the judgment is reversed and the cause remanded.

Reversed and remanded.