
    HUGHES v. STATE.
    (No. 9641.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1926.)
    1. Criminal law t&wkey;l3 — Statute defining offense of hunting with firearms upon inclosed land of another is not void as indefinitely describing constituent elements of offense.
    Pen. Code 1925, art. 1377, being Vernon’s Ann. Pen. Code 1916, art. 1255, which defines offense of hunting with firearms upon inclosed land pf another without latter’s consent held, not void as indefinitely describing constituent elements of offense.
    2. Criminal law &wkey;H 137(5)— Objection to admission of testimony, substance of which accused himself admitted, held without merit.
    Objection to admission of testimony, substance of which accused himself admitted, held without merit.
    3. Trespass &wkey;>88 — Testimony accused said he would kill all birds on land held admissible.
    In prosecution under Pen. Code 1925, art. 1377, being Vernon’s Ann. Pen. Code 1916, art. 1255, for hunting with firearms upon inclosed land of another without latter’s consent, testimony that prosecuting witness warned accused he did not allow hunting on premises, and that accused replied that some day he was going over and kill all the birds witness had, held admissible.
    4. Criminal law &wkey;>364(l) — Testimony held properly received as res gestee.
    In prosecution under Pen. Code 1925, art. 1377, being Vernon’s Ann. Pen. Code 1916, art. 1255, for hunting with firearms upon the inclosed land of another without latter’s consent, testimony accused had a bird dog with him, was properly received as res gestee.
    5. Trespass <&wkey;>88 — Evidence held to warrant conviction of hunting on inclosed land.
    Evidence that accused,* while hunting, entered upon inclosed premises without consent of owner in pursuit of a covey of birds, and fired two shots on such premises, held to warrant conviction of violating Pen. Code 1925, art. 1377, being Vernon’s Ann. Pen. .Code 1916, art. 1255. '
    Commissioners’ Decision.
    Appeal from Johnson County Court; O. B. McPherson, Judge.
    A. A. Hughes was convicted of hunting with firearms upon the inclosed land of another, and he appeals.
    Affirmed.
    Burton S. Burks, of Lubbock, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellant was convicted in the county court of Johnson county for the offense of hunting with firearms upon the inclosed land of R. H. Cashion, and. his punishment assessed at a fine of $10.

This prosecution is based on article 1255 of Vernon’s Penal Code and article 1377 of the 1925 Penal Code. The record discloses without dispute that the land in question, consisting of 108 acres, was properly inclosed ; that said Cashion had informed appellant, prior to the day of the alleged offense, that he did not want him hunting upon said premises; that said appellant, while hunting upon an adjoining farm with one Mr. Adair, flushed a covey of birds which flew upon the premises of said Cashion; and that said appellant went upon said premises of said Cash-ion with his gun and bird dog and fired two shots thereon. Appellant contends that the shooting was for the purpose of calling in his dog, and that he was not shooting at birds, but on the stand in his own behalf testified that he would have shot the birds on the premises if he had found them.

Appellant questions the validity of the statute and the sufficiency of the information. based thereon, upon the ground that same is uncertain and too indefinite and does not describe or give any constituent elements of the alleged offense with that degree of certainty required by law, and is of. such doubtful meaning that it cannot be understood. We see no merit in this contention, and are of the opinion that said statute, making it an offense for any person without the consent of the owner or some one in his stead to hunt with firearms upon the inclosed land of another, meets all the requirements, and is sufficient to apprise any person of the meaning thereof.

Appellant complains of the action of the court in permitting the prosecuting witness, over his objection, to testify to seeing two men hunting on his premises in question, because it is alleged that neither of the men mentioned was shown to be the appellant. There is no merit in this contention, as the appellant upon the witness stand admitted that he was on said premises at the time and place in question, and talked to another party who said he was hunting, and left word with him to tell the prosecuting witness, who it appears was then approaching the scene, who he was.

Appellant also objects to the action of the court in permitting said prosecuting witness to testify that, prior to the alleged offense, he told the appellant he did not allow any hunting on the said premises, and that said defendant replied that some day he was going over to said premises and kill all the birds the prosecuting witness had. We think this testimony was clearly admissible.

Complaint is' also made to the action of the court in permitting the state to show that, while appellant was upon said inclosed premises, he had a bird dog with him, because said testimony would be immaterial and would not tend to show that he was hunting with firearms. • There is no merit in this contention, and the whole transaction upon this point was res gestae.

Appellant complains of the refusal of the court' to give to the jury his special charge No. 2, to the effect that, if appellant found some birds upon adjoining land of the prosecuting witness, and followed them on the premises of said witness, and did not fire at them, or if he did fire at them, did not kill over two or three, to acquit him. In support of said charge, appellant cites Sims v. State, 70 Tex. Cr. R. 586, 157 S. W. 1194, and in connection with this contention and under this authority urges that the evidence in this case is insufficient to support the conviction. We are unable to agree with the appellant upon either of said contentions, and are of the opinion that the court committed no error in refusing said charges, or in- overruling the contention that the. evidence was insufficient to sustain a conviction. We are clearly of the opinion that appellant’s counsel, in attempting to apply the Sims Case, supra, to the instant case, overlooks or mistakes the contention made by the learned judge who rendered said opinion.

In that case the record disclosed that the appellant was driving cattle along the public road, apd a covey of quail flew from the road and lit on the premises of one Kim-brough, and that there was a gun in' the back, with only one load of ammunition for same, and that appellant took the gun, stepped into the pasture of said Kimbrough, and shot and killed two or three of the said quail, and, upon being approached by the owner at said time, appellant informed him that he thought the premises belonged to one Davis. The learned judge in that ease stated that the appellant, in thinking he was on Davis’ land, was laboring under a mistake of fact, which would inure to his benefit, and the refusal of the.court to give a special charge as to such a mistake of fact was error. The learned judge, after reciting the evidence, stated:

“It may be seriously questioned whether this is hunting on inclosed land of another within the purview of the statute. There was but one shot fired. The writer does not believe this would bring it within the denunciation of the statute. This .is hardly sufficient to constitute what the statute denominates as ‘hunting.’ ”

It may be' truly said, with reference to the last portion of said decision relative to hunting, that same was dicta of the judge delivering the opinion, as stated by him therein. However, we are of the opinion that the judge had no intention in that case of announcing the doctrine as contended by the appellant in the'instant case, that, if birds found on the premises of adjoining land fly upon the premises of another, as shown by the record in this case, such state of facts whuld authorize the following of said birds and trespassing upon said premises without the consent of the owner thereof. Such a holding would nullify the statute upon which this prosecution is based. The learned judge in the Sims Case, supra, was only summing up the facts and showing that the appellant in that case was not hunting at all, but was driving cattle and just happened to come upon the birds in theTane, and happened to have a gun handy, and killed two or three of said birds after they had gone upon the premises of the said Kimbrough, and expresses his opinion that such state of facts did not constitute hunting with firearms as denounced under the statute, supra. At any rate, the instant case is easily distinguished from the Sims Case, in that the record without contradiction shows that the appellant was out hunting with firearms, and without the consent of the owner entered upon the.inclosed premises in question, following birds, and admitted by him that he would háve killed them if he could have found them, and Sims was not hunting, but driving cattle, and accidentally came across the birds in the road.

After a very careful examination of the entire record, we fail to find any error committed in the trial of this case, and the judgment of the trial court is therefore affirmed.

PER OURIÁM. 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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