
    LANE v. STATE.
    (No. 9245.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1925.)
    1. Landlord and tenant &wkey;>l32( I) — Landlord held not entitled to trespass on tenant’s land, and thus destroy fruits of tenant’s labor.
    Where the right of accused as a tenant to the possession of land of prosecuting witness was unquestioned, neither the landlord nor any other person had a right to become a trespasser thereon and thereby destroy the fruits of accused’s labor in preparing the soil for planting.
    2. Homicide 4&wkey;92 — Threat of tenant to trespassing landlord held insufficient to predicate conviction of threatening to take life of landlord.
    Where a landlord trespassed on the lands rented to accused and prepared by the latter for planting, and in trespassing injured the land, accused’s command to the landlord to get off the premises, and his threat, accompanied by display of revolver to kill the landlord if he caught him on the premises again during the tenancy, held insufficient, under Pen. Code 1911, art. 1445, to predicate conviction of threatening to take the life of the landlord.
    Commissioners’ Decision.
    Appeal from Lamar County Court; W. Dewey Lawrence, Judge.
    Bob Lane was convicted of threatening to take the life of a certain person, and he appeals.
    Reversed and remanded.
    Sturgeon & Sturgeon, of Paris, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the county court of Lamar county of the offense of threatening to take the life of one R. L. Rose.

The facts show that the appellant was the tenant of the prosecuting witness Rose, and that on the 6th of March, after appellant had rented the land hereafter mentioned from Rose, and after he had bedded quite a bit of it preparatory to planting it, the prosecuting witness with other hands went on the premises and began breaking up and removing the land which appellant had bedded, and terracing the said land; that the appellant came to where they were at work and told the prosecuting witness to “get their outfit out of here”; and that prosecuting witness protested that the land would ruin if he did not terrace it. In order to make the matter clear, we quote from the testimony of the witness Rose:

“I stood and argued with him and hq pulled a gun out; he was 12 or 13 feet from me. I said, ‘Mr. Lane, you would not shoot a man for keeping his land up, would you?’ He said, ‘Yes; I’d,shoot you for twó cents.’ I said, ‘Mr. Lane, I'did not come over here to damage your land; I came here to terrace this, and I will get three men to come in and testify what damages are done and pay you.’ Yes; that is my farm, but I had rented it to the defendant for the year 1924. I was building up the terraces when he drew a gun. I kept my eye on him; he still had his gun out, and I said, ‘Mr. Lane, I have no protection; I did not come over here for trouble.’ He then started walking off and said, ‘God damn you, get out.’ I said, ‘I have no protection so I will go.’ I went over to the boys and said, ‘Gome on, let’s go’; and the defendant said ‘God damn you, if I catch you on this land any more until 1925 I’ll kill you.’ I have not been back on the place since. The defendant came to where I was from the house lot at the house, I first saw him driving a team into the lot; then I saw him coming across the field where we were.” ,

On this testimony appellant was convicted for threatening the life of the witness Rose. Article 1445 of the Penal Code provides:

“That a threat that a person will do any act merely to protect himself, or to prevent the commission of some unlawful act by another, does not come within the meaning of this chapter.”

We are unable to lead ourselves to the conclusion that the threat detailed by the prosecuting witness does not come within the article of the Penal Code above quoted. It seems clear to us that the prosecuting witness was a naked trespasser and actually doing injury to the property of the appellant. In other words, we conclude that the threat, if made, was made for the purpose of preventing the commission of an unlawful act by the prosecuting witness. If the prosecuting witness could destroy the work that the appellant had done in preparing the land for planting, then he could have destroyed the crops for the same purpose after they were raised. We think it clear that his entry on this land at that time was unlawful, and that the appellant had a right, under the statute above quoted, to order him to leave and to stay off of said premises. It is true the appellant was a mere tenant on premises owned by the prosecuting witness, but, under the undisputed testimony, his right to the possession of said property was unquestioned, and neither the landlord nor any other person had a right to become a trespasser thereon and to thereby destroy the fruits of his labor. Again, it has been held that a rash'expression provoked by an angry altercation in which they are then engaged will not constitute the offense of seriously threatening to take life. March v. State, 3 Tex. App. 107; Bolt v. State, 67 Tex. Cr. R. 551, 150 S. W. 431. We think this case clearly comes within the rule announced in the above eases.

For the reasons above stated, it is our opinion that the judgment should be reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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