Boubel v. State

DAVIDSON, Presiding Judge. The charging part of the complaint and information is as follows: that appellant “did then ana there unlawfully and knowingly hunt with fire-arms upon the enclosed and posted lands of the J. M. Chittim Estate, said enclosed land then and there being leased from said J. M. Chittim Estate by G. Davidson, without the consent of the owner, lessee, proprietor, agent in charge thereof, or any other person, such enclosed lands then and there being used for grazing purposes, having cattle grazing thereon.” Exception was reserved to the pleading, which was overruled by the court. It is not alleged who was in charge of the Chittim estate, or alleged to be the owner of the property leased to G. Davidson; nor does it undertake to allege the want of consent of whoever was the owner of the Chittim estate by reason of having control and possession of it. Except in the most general way it does not allege want of consent of G. Davidson, if he was the lessee or proprietor; nor does it allege any agent-of Davidson who may have been in possession of the property or in charge of it, or want of consent of any one in actual possession. Under our statute and decisions it would seem to be necessary to charge, where there is a special ownership, tlm name of such owner, and whatever is necessary to be charged in connection with that ownership. This prosecution was filed under Article 1255-a, 1 Vernon’s Ann. Statutes, and Article 2278, Branch’s Ann. P. C. It is always necessary to charge in the pleadings sufficient allegations to meet the proof to be had upon the trial. Under the eases in Texas the pleadings are insufficient. It may be further noticed that the evidence shows the property did belong to the Chittim estate, but it does not *362 show who was in control and in charge of the Chittim estate. Williams testified that at the time of the trial he was sheriff and tax collector of Maverick county, and that prior to his election to said office he was manager of the Chittim ranch interests in Maverick County; that these are the same lands now owned by the heirs of J. M. Chittim, and the land was enclosed in quite a number of different pastures (the witness sets out the names of several of the pastures), and that each pasture contains land in excess of two thousand acres, and were all fenced under different fences, and that the whole number of acres that belong to the Chittim estate and as leased by G. Davidson amount to over one hundred and seventy thousand acres. Singleton testified for the State, that he was foreman of the G. Davidson ranch interests in Maverick County, and had been so for fourteen or fifteen years. He also testified that G. Davidson is the lessee of all the J. M. Chittim estate lands in Maverick County, including the Indio pasture; that these lands were used for grazing purposes. The State relied upon the fact that appellant was hunting in thb Indio pasture. Davidson did not testify, therefore his want of consent was not shown. Singleton testified he did not give his consent. Singleton’s name is not mentioned in the complaint or information as having charge of the property, therefore his want of consent does not assist the State’s case. It would have been necessary, if they relied upon possession of Davidson, to allege his possession and show that he did not give his consent to hunt on the premises. If Davidon was not in possession but Singleton was as special owner, it would be necessary to charge in the complaint and information such fact and negative want of consent of Singleton. The witness Salinas testified he was in charge of the Indio pasture as its manager. This is the pasture where the hunting was supposed to have occurred, and that he did not give his consent for appellant to hunt in this pasture, but his name is not mentioned in the information or complaint. So whether we view it from the standpoint of the sufficiency of the complaint and information to charge the offense, or view it from the testimony supporting the case as charged, this record does not authorize an affirmance. We are of opinion that the complaint and information are insufficient, and that the evidence does not sustain such allegations as are made. From any view point of the record this judgment must be reversed and the cause remanded, and it is accordingly so ordered. Reversed and remanded.