23 Tex. Ct. App. 404 | Tex. App. | 1887
This was a prosecution by infor
As charged in the information the offense is set out in the following language, to-wit: that defendants “did then and there, unlawfully acting together and with each other, enter upon the enclosed and posted lands of J. Q. Shelley, J. T. Eeed and Ed. T. Eeed, without the consent of the owners, and did therein hunt with fire arms; and the said posted and enclosed lands of J. Q. Shelley, J. T. Eeed and Ed. T. Eeed have less than two thousand acres in said enclosure, contrary,” etc.
A motion was made to quash the information, in effect because the same did not negative the fact that the entry was made upon the land without the consent of the proprietor or agent in charge of the same. This motion was overruled by the court.
We are of opinion that the ruling of the court was erroneous, and that the motion should have been sustained. The language of the Act upon which the information is based is as follows: “Section 1. That any person who shall enter upon the enclosed and posted land of another without the consent of the owner, proprietor, or agent in charge, and therein hunt with fire arms, or therein catch or take any fish from any pond, lake or tank, shall be punished by fine of not less than five nor more than one hundred dollars.”
To be valid under this statute, the information should expressly negative the want of consent of all the parties named in the statute, and a failure to do so will render it invalid.
Because the information in this case fails to charge the statutory offense, the judgment is reversed and the prosecution is dismissed.
Reversed and dismissed.
