
    (86 Tex. Cr. R. 468)
    JONES v. STATE.
    (No. 5537.)
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1920.)
    1.' Animat,s <@=»102 — Information fob trespassing SHOULD NEGATIVE CONSENT OF ANY OWNER.
    Information charging that defendant caused cattle to go within inclosed lands of T. without T.’s consent should have alleged want of consent of the other renters or possessors of the land in the inclosure including the owner, he having rented to T. and others for shares of the crops.
    2. Animals ’<©=» 102 — Consent of joint owner DEFENSE TO PROSECUTION FOB TRESPASS.
    Conviction of causing cattle to go within inclosed lands without consent is unsupported by evidence, defendant having authority from the owner of the land who rented to others for shares of the crops.
    Appeal from Fisher County Court; W. C. Martin, Judge.
    Tom Jones was convicted of causing cattle to go within inclosed lands without consent, and appeals.
    Reversed and remanded.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The complaint and information charge that appellant did knowingly cause cattle and mules and horses to go within the inclosed lands of J. N. Thomas without the consent of said Thomas.

Briefly stated, the evidence is to the effect that appellant rented 250 acres of land from Dr. Pardue. This was all in one inclosure. There was also 20 acres in the inclosure rented from Dr. Pardue by a witness named Cut-birth. Appellant, ascertaining that he would be unable to cultivate the 250 acres, with permission of Dr. Pardue rented 25 or SO acres to Thomas, prosecuting witness. On account of the very severe and continued drought, practically no crops were raised. Thomas said he did raise a little maize, most of which he hauled away and fed to his stock; that he also had a small amount of indifferent maize and some weeds that he cut and piled, which was rather insignificant both in quantity and quality. The evidence also shows that the rental contract was based upon shares of the crop. 'Dr. Pardue was to get one-third and Thomas two-thirds. He did not turn over any of Dr. Pardue’s part, but says he left his part of the crop standing. In October, Thomas testified, appellant notified him he was going to turn his stock in and wanted him to get whatever crop he had left hauled out. What Thomas had left was a small amount of indifferent maize and weeds that had been raked together. Thomas says this was not valuable, but was worth something. His claim is that appellant’s stock ate this. Appellant’s testimony shows that he informed Thomas on the 2d of November, and corroborated by other witnesses, that he was going to turn his stock in; that he had permission from Dr. Pardue to do so. Thomas testified as to the conversation, but places it on the 12th of October. Dr. Pardue did give permission to appellant to turn his stock in the inclosure. Cutbirth testified he did not raise anything, and therefore did not pay Dr. Pardue any rent. Dr. Pardue testifies that none of them paid him anything; that he did not expect any, as they raised nothing.

Appellant’s contention is that the complaint and information should have alleged a want of consent of the other renters or possessors of the land in the in closure. We are of opinion that appellant’s contention under this proposition is correct. Dr. Pardue was joint owner with Thomas in the crops by reason of the rental contract, as he was with the defendant and also Cutbirth. Dr Pardue was the real owner of the property, and joint owner of the crops, and was entitled to his pro rata share, and to that extent he was the owner of the crop as much so as were his tenants.

We are also of opinion that the evidence does not support the conviction inasmuch as appellant had authority from Dr. Pardue to turn his stock in the inclosure. It might be mentioned in this connection also that Thomas, the prosecuting witness, permitted his cattle to run in the inclosure, and al--so a mule that he worked ran in the inclosure. Dr. Pardue drove Thomas’ cattle from the inclosure to his house. Thomas was absent, but he says Mrs. Thomas used such vigorous language towards him with reference to the matter he did not care to repeat it to the jury.

Under these circumstances, we are of opinion this judgment ought not to he affirmed; it is therefore ordered to be reversed, and the cause remanded. 
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