*1 v. OVERBY. JACKSON 2498.
No. Texas. Eastland.
Jan. Collins, Blanks, Jackson, Snodgrass & Angelo, appellants. Watson, appellee. Roby, G.
Morris LONG, Justice. damages This action filed in the County Court of
plaintiff, Clint
the defend-
ants,
County,
P. H.
of Tom Green
Jackson
Reagan County,
Roy
M.W.
Jackson
individually
County,
Spires of
Nolan
parties
partnership.
as
ferred to herein
trial
alleged
Sep-
Plaintiff
that on or about
14, 1943,
pos-
tember
tenant
in Fisher Coun-
session
certain lands
ty,
upon such
and that he had
maize,
cotton,
crop
hegari
joint
were the
owners
that the defendants
considerable number of cattle
normally grazed upon the
adjoining
plaintiff’s property,
good four wire fence around said field
a
capable
of turning
into
that defendants’ cattle broke
the land
destroyed
crops. That
of
there
was a
the said
and
cattle to
roam at
effort
them,
negligently
un-
to restrain
lawfully permitted
crops.
damage
break into and
requested
also
that he
steps
to take such
fendants
neces-
*2
766
in
of such
venue
sary
prevent
plaintiff
to
re-occurrence
to sustain
offense,
necessary
defendants
Fisher
it
would
to drive
violated
refused
anything and
him
the
refused
such
do
to
premises.
plaintiff’s
off
committed
of
stock laws or that
trespass
by
In an
in
of
separate plea
filed a
Each defendant
of
Antonio Court
Civil
his
county of
privilege
in
to
sued
681,
Meyer,
which
in
S.W.2d
Thomas
plea
each
Plaintiff controverted
residence.
and
approved
Supreme
thereafter
was
affidavits
controverting
to
his
attached
McCurley,
Court Mercer
original petition and
his
amended
second
923, the
said:
petition
contro-
of such
made the
affidavits,
venue
sought to hold
to
verting
“As
character of
action
1995, ex-
Article
by way
summary,
holding
under
of
of
Texas,
9,
of
ception
applicable
Civil Statutes
order to
is
make
exception
the defendants had
Article
the ‘crime’
of
grounds
clause
of
against
petition
stock
an offense
the suit
liability
and a
basis
laws of
State
must be one in which the
plaintiff
is
act
omission
or omission for which act or
hearing
merits
Prior
the trial on the
to
punishment
is
to
under
defendant
liable
privilege be-
pleas of
upon
such
Penal Code.”
686.]
court,
jury,
fore
without
Article 1369
Code
Penal
evidence,
such
overruled
hearing
follows:
duly ex-
defendant
pleas, to which action
Thereafter,
cepted.
the case
wilfully
cause
“Whoever shall
turn out or
with the
upon
before
or
its
be turned out
not
on land
his own
and,
upon the find-
jury,
based
wilfully
aid
under
or
fail or refuse
his control
jury,
entered
ings
stock,
up any
prohibited
law
favor of the
Upon
any
running
defendants
or
large
at
overruling
any county
$500.
sum
subdivision
gave
defendants
adopted, wilfully
a motion
law
or
stock
appeal
notice
low such
stock
of
thereof,
another
such
or subdivision
privi
the trial of
wilfully permit
at large
or
to run
lege
Clint
own,
any
stock
his
is
which he
plaintiff.
The
only
witness offered
control,
agent
or of which
has the
testimony.
defendants offered
any
large
and
county
read the
contro
testified he
any' county
or subdivision
verting affidavits and his second amended which the
adopted,
has been
shall
case,
that the
original petition in this
be fined not less
five nor
than
than
more
allegations
therein were true and
contained
fifty dollars.”
objected
correct. The
1370 of
Article
the Penal Code is
testimony upon
such
admission
follows:
it
grounds that
called for
“Whoever
knowingly permit any
necessarily
conclusion of
required
terpretation upon
witness and
horses, mules, jacks, jennets,
place
in
witness
own
at large
any territory
run
in this State
allega
the effect of the
where the
laws
pleadings
tions in
province
and invaded the
adopted
State
any
have-
such
from running
animals
witness should
be fined not less
five
than
nor
than
more
facts,
testify
specific
rather than
as to
dollars.”
hundred
prop
to his
that such
conclusion
erly
the facts. We are
stated
understand
such
inadmissible element of the offenses defined above
anis
objections thereto
should
complained
intention
to do
act
of or
been sustained.
such
isas
tantamount
ato wil
ful act. 39
373. As
Judge
portion
testimony
Tex.Jur.
With
Webb,
Texas & P.
Williams in
Co. v.
excluded, .we must then
the other
consider
1173:
and ascertain whether
sustain
is
overruling
“While
law is
court’s
intended
quire
owners to confine
prohibited,
proof,
of which
such
but in view
vio-
permits
one who
them to run at
fact
must be reversed
that this case
nevertheless, that
true,
pass
ground,
we do not
di-
lates the
escape without
rectly
point.
may
such
often
on this
animals
*3
owners, when
part
the
of their
fault on
Because
insufficient to
evidence
the
offense
guilty
the
latter will be
show crime or
the
judgment,
the
we reverse
fully
the
believing
and
veloped,
case was not
Phinney
State,
In
v.
59 Tex.Cr.R.
remand the cause for
we
the court
that
S.W.
held
trial.
that
jury
the
refusing
instruct
erred in
Rehearing.
On Motion for
they acquit
if
believed
they
Appellants
rea-
he
enclosure and
rehearing
had stock in his
had
filed motion
cause,
son to believe
the
asking
the same was
this
court
set aside
the
they escaped
them
without his
reversing
hold
and
this
and
knowledge
asking
rea- cause for
and consent
he used
a new
and
keep
to enter
diligence
judgment reversing
judg-
sonable
them
run-
the
large.
ment of the
this
rendering
lower court and
or,
appellants,
cause in favor
ex
We
a careful
have made
ternative, to reverse and render
same
the
this
amination of
the statement of facts
venue,
question
with
instructions
case. The
that
evidence shows
the lower
proper
enter
order
crops
on which
field
he had
changing,
light
venue.
the
the
pasture
the
of the
surrounded
motion,
have again carefully
reviewed
plaintiff plead
defendants. The
had
he
the
the
record
this
are of
good
capable
turning
four wire
fence
disposi-
that we made the correct
field,
he
cattle around his
opinion.
original
tion
same in
the
our
all
built
fence
times while he was
opinion,
in our
living
keeping
original
been
As stated
appellants
repair.
challenged
That
fence in
the proof to show that
posts
repairing
him with
furnished
fence. He
County.
effect in Fisher
We
that the fore
not deem
further testified
did
it necessary
pass directly
ques
man of
the defendants had been
However,
keep
tion.
field,
out
de
of his
mature and
consideration,
liberate
keep
them out and
are of the
time he did
the proof
offered
at other times
he could
court below
out
had the
was insufficient
fields. That
show
that the stock law
in effect
during
broken into
the
several
his field
times
year 1943. That
green
was no
offered
evidence
pastures,
order of
(the cattle)
and that
Commissioners Court can
vassing
through
returns
would break
fields.
election
into the
county judge’s proclamation declaring said
evidence
plain-
Under the
we believe the
law to
inbe
effect.
tiff
the necessary
show
elements
The cause
seems to have
violation of the
stock law.
tried on
the theory
Commissioners Court
question
would be
.could tabulate and count the votes. Such
to show that the
tabulation
requirements
did
meet the
negli
guilty
defendants were
active
State,
King
law.
Tex.Cr.App.,
v.
gence,
passive
mere
not some
773;
Texas Electric Railway v.
duty.
omissions
Reese, Tex.Com.App.,
W.2d presence clerk and at least peace one proof county, contend offer- Defendants respectable of ty, freeholders of the coun- ed insufficient to show showing and an order result effect in was in We have duly recorded in the question minutes given thought considerable county. commissioners study and have doubt Error, elec- Dig. Appeal Tex. the result of said See determined, seq.” ®=51177 (thus) certified tion this recorded, prima facie to be held Appellant’s inis rehearing motion for lawof all things overruled. all presenting complied with in there- petition, the on election, giving ordering election, holding said notice and and de- counting returning votes thereof, and, if elec- claring the result thgn tion be in favor declared to thirty days from said *4 then after date, facie evidence that prima it shall proclamation required by has CROAN v. McKINNEY published by No. 6139. record that There is this' Texarkana. Texas. opened, returns of election were Feb. county judge tabulated and counted in the way provided and manner in said Article 6961. If trial such introduced in evidence are of privilege filed herein should be sustained. Appellants earnestly that we insist behalf, judgment herein render after in their thoughtful careful considera tion, ends justice remand be better subserved ing the cause both Associ Hart, Tex.Com.App., Oil ated S.W. Co. Howell, & P. Co. Texas
Tex.Civ.App., 117 S.W.2d Ohio Oil Varner, Tex.Civ.App., Co. 185. Hart, supra From Oil Co. v. Associated 1045], quote: r.ule, “It a judgment where reversed, to remand trial court render, than to rather where the ends of will be better subserved Such has often been ordered
supply testimony, additional amend jurisdiction.” pleadings, and even by Judge London As said Brewster in McAlister, Tex.Sup., Terrace v. 180 S.W. 619, 621:
2d decisions show causes “Our rather been than reversal remanded rendered, case was when the theory, wrong when fully developed,
not the when raised issues on, passed were when the insufficient, were findings of fact when par- pleading defects in or in ties, probable when it seemed be better justice would subserved ends of