
    ROACH v. STATE.
    (No. 11226.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    Fish <&wkey;l3(l) — Accused who fished on premises of another was not guilty of violation of statute where he did not catch or take fish (Pen. Code 1925, art. 1377).
    Where accused, fishing on premises of another with pole and line, but not catching any fish, was prosecuted under Pen. Code 1925, art. 1377, providing one entering inclosed land of another without consent catching or taking fish shall be fined, Vield, that under statute fishing was not an offense unless fish were caught or taken.
    Appeal from Palo Pinto County Court; E. L. Pitts, Judge.
    Chester Roach was convicted of violating the game law, and he appeals.
    Reversed and remanded.
    P. C. Sanders, of Strawn, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Appellant was charged with an offense against the game'law of the state; punishment fixed at a fine of $10.

The prosecution is under article 1377, P. C. 1925, which declares, in substance, that one entering upon the “inclosed land of. another without the consent of the owner, * * * and therein hunt with firearms or therein catch or take any fish from any pond, lake, tank or stream, or in any other manner depredate upon the same, shall be fined,” etc. The information charges that appellant went upon the inclosed land of the owner, and “did then and there depredate upon said property, and did then and there fish in the No. 3 mine tank.” The evidence shows that the appellant went upon the premises and fished with a pole and line, but it fails to show that he caught any fish. It is manifest that the only depredation relied upon is that of fishing. It is believed that under the statute, fishing does not constitute an offense unless fish be caught or taken from the pond, lake, or stream.

The judgment is reversed and the cause remanded. 
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