
    TAYLOR v. STATE.
    (No. 7617.)
    (Court of Criminal Appeals of Texas.
    Jan. 2, 1924.)
    1. Animals <&wkey;36 — Evidence held admissible on question of punishment for violation of Tick Law.
    In a prosecution for violation of the Tick Law, defendant’s evidence that he took his cattle to the proper vat for dipping, but the inspector told him over the phone that he could not come down that day or the next, and did not know when he could dip the cattle, was admissible and material in determining the amount of his punishment.
    2. Criminal law &wkey;656(9), 1166'/2(12) — Court’s comment on evidence held reversible error.
    
    In a prosecution for letting cattle drift into a quarantined area, comment by the judge on evidence constituting defendant’s entire defensive theory, that he did not think it had any bearing, and was immaterial, violated Yernon’s Ann. Code Cr. Proc. 1916, art. 787, prohibiting comment, and was reversible error.
    Appeal from Edwards County Court; A. P. Allison, Judge.
    M. D. Taylor was convicted of violating the Tick Law, and he appeals.
    Reversed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Appellant was convicted of violating the Tick Law; punishment fixed at a fine of $62.50.

The information charged that the appellant was the onwer of 25 head of cattle, located in Real county, that on the 17th day of November, 1921, they were by him driven or permitted to drift from the point where they were located in Real county to a point on the ranch of the appellant in Edwards county, each of said counties being within the special quarantine area designated as zone No. 2 for the purpose of tick eradication; the movement having taken place without a permit from the inspector of the live stock sanitary commission of Texas.

J. C. Clark testified that he was ifispector for the live stock sanitary commission of Texas for Edwards county, Tex.; that on the 17th day of November, 1921, he was called up by the appellant over the telephone from the Woolridge Ranch, in Real county, stating that he had a bunch of cattle which he wanted dipped, and was told that they must be dipped at the McFatter vat; that the witness could not dip the cattle at the vat in his charge without an instruction to do so from one Bardwell, located in Edwards county, and that the cattle could not be passed, but must be driven back to the McFhtter vat. The witness never saw' the cattle, nor did he give the appellant any permission to drive them from Real county into Edw'ards county.

The appellant, as stated in the bill, offered to prove.:

“ * * * That in the same conversation brought out by said state’s witness on direct examination that he, the said defendant, Taylor, stated to said witness that he had a small-bunch of cattle which had been driven by him from out of Uvalde county, and that two or three days before he left them he called Mr. Rannell, who was the inspector of the live stock sanitary commission of Texas in charge of the McFatter vat, and requested that he be present and dip the cattle at said vat and inspect them and give him a permit to take them on, and that said inspector agreed to meet him, the defendant, at the McFatter vat on the morning of November 17, 1921, and dip said cattle, and also that the said defendant did drive the said cattle to said vat in accordance with such instructions, and was there the morning of November 17, 1921, at the appointed time, with the cattle ready to be dipped and inspected, and that on arrival there he found the inspector was not there, and the vat had not been filled, and hud no dip in it, and that he, the defendant, further stated in said conversation that he called the inspector in charge of the McFatter vat, Mr. Pannell, by phone, and requested him to come immediately so the cattle could be dipped, inspected, and passed, and the inspector told him that he could not come that day, and then he, defendant, asked the inspector to come the next day, and he told defendant that he could not come the next day, and did not know when he could come and dip and inspect said cattle, and, further, that the defendant in same conversation then stated that he decided to call him, the witness (who was also inspector as aforesaid), and had the conversation as stated.”

Objection was made to this proof, with reference to which the court made the following remark:

“I will overrule your objection, Mr. District Attorney. I do not think that the testimony has any bearing on the case or amounts to anything, and is immaterial.”

Exception was reserved upon the ground that the remark was a comment upon the weight of the evidence.

Apparently the prosecution is based upon a law prior to its amendment by chapter 38, Acts 36th Leg. 3d Called Sess. (Vernon’s Ann. Civ. St. Supp. 1922, arts. 7314kl to 7314k5, 73141, Yernon’s Ann. Pen. Code Supp. 1922, art. 1284k.) We are not favored with a brief by the appellant, and are not aware of his views touching the alleged inadmissibility of the proclamation. It was apparently made prior to the amendment of the statute by Acts 30th Leg. 3d Called Sess. c. 38. See Ex parte Leslie, 87 Tex. Cr. R. 477, 223 S. W. 227. A discussion of that phase, is preter-mitted.

The comment of the court upon the evidence introduced by the appellant, although there was an attempt to withdraw it, is apparently a serious matter. Simmons v. State, 55 Tex. Cr. R. 444, 117 S. W. 141; English v. State, 85 Tex. Cr. R. 456, 213 S. W. 632; Vernon’s Tex. Crim. Stat. vol. 2, p. 694, and cases there collated. It is manifestly in contravention of the legislative command embraced in article 787 of C. C. P., which reads thus:

“In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible: nor shall he, at any stage of the proceedings previous to the return of a verdict, make any -remark calculated to convey to the jury his’ opinion of the case.”

The evidence to which the comment was addressed was the appellant’s entire defensive theory.

In the absence of a brief pointing out and analyzing the part of the act of the Legislature relied upon and the construction thereof •contended for, we refrain from expressing-any opinion as to whether this testimony was such as to .authorize the jury in rendering a verdict of acquittal; that is to say, whether it presented a defense. There is no question, however, in our minds that it was admissible and material for the consideration of the jury upon the amount of punishment to be assessed. The verdict was much above the minimum prescribed by law.

In our judgment, the comment of the court upon the mitigating facts requires a reversal of the judgment; and it is so ordered. 
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