
    PARTRIDGE v. STATE.
    (No. 3311.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    Game (§ 7*) — Criminal Prosecutions — Information—Sufjbtoiency.
    An information charging that accused unlawfully entered upon the inclosed and posted lands of a corporation named, without its consent or the consent of its manager, and therein hunted with firearms, did not state an offense under White’s Ann. Pen. Code, art. 804, as 'amended in 1903 (Acts 28th Leg. e. 103), now Pen. Code 1911, art. 1255, which provides that any person who shall enter upon the inclosed land of another without the consent of the owner or agent in charge, and hunt therein with, firearms, shall be punished as therein provided, provided that this shall not apply to inclosures including 2,000 acres or more in one inclosure, nor under Acts 26th Leg. c. 102, making it unlawful to hunt with firearms upon the inclosed and posted lands of another without the consent of the owner, where such lands are in use as agricultural lands or for grazing purposes, having cattle, horses, etc., thereon; it not alleging that the land in question was used for either agricultural or grazing purposes.
    [Ed. Note.—For other eases, see Game, Cent. Dig. §§ 6, 7; Dee. Dig. § 7.*]
    Appeal from Throckmorton County Court; T. J. Wright, Judge.
    ' J. A. Partridge was convicted of an offense, and he appeals.
    Reversed, and prosecution ordered dismissed.
    See, also, 158 S. W. 549.
    J. S. ICendall, of Munday, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted under an information alleging that appellant “did then and there unlawfully enter upon the inclosed and posted lands of Reynolds Cattle Company, a corporation duly incorporated under the laws of the state of Texas, without the consent of the said Reynolds Cattle Company, the owner, and without the consent of M. B. Gentry, the manager of tho said Reynolds Cattle Company, or either of them, and therein hunt with firearms,” etc.

This prosecution was instituted under article 804, White’s Ann. Penal Code, which reads, as applicable to this case:

“Any person who shall enter upon the inclosed and posted land of another, without the consent of the owner, * * * or agent' in charge, and therein hunt with firearms, shall be punished by fine of not less than five nor more than one hundred dollars.”

Had this article of the Gode remained as thus drawn, the information would be good under it; but in 1903 (Acts 28th Leg. c. 103) this provision of the Gode was amended so as to read as follows, as applicable to this case (it is now article 1255, P. 0.1911):

“Any person who shall enter upon the inclosed land of another without the consent of the owner, * * * or agent in charge, and therein hunt with firearms, * * * shall be punished by a fine of not less than $10.00 nor more than $100.00, provided, that this act shall not apply to inelosures including 2,000 acres or more in one inclosure.”

The county attorney and trial court were perhaps not made aware of this amendatory act, because the information is drawn under the old act, and the court authorized the punishment under the old act, while the amendatory act changed the minimum punishment from $5 to $10, leaving the maximum the same. It will be further noticed that in the act as amended, if the inclosure contains 2,000 acres or more, no prosecution can be had thereunder, and, if the inclosure contains less than 2,000 acres, it is no longer necessary to allege that it is posted, for under the amended act it is an offense to hunt with firearms on the inclosed lands of another if the inclosure contains less than 2,000 acres. By reading this amended act it can be readily seen that the information does not charge the offense therein defined.

We have another statute, however, which relates exclusively to “posted” lands, being chapter 102 of the Acts of 1899 (Berry v. State, 156 S. W. 627), which makes it an offense to knowingly hunt on the inclosed lands of another, regardless of the size of the inclosure, provided such lands are in use as agricultural lands or for grazing purposes, having cattle, etc., thereon. But the information does not charge an offense thereunder, for it does not allege that the lands of the Reynolds Cattle Company were being used either for agricultural purposes or for grazing purposes, having cattle, horses, etc., herded or grazing thereon, nor that appellant “knowingly” did the act Nor does the evidence disclose whether or not the inclosure contained less than 2,000 acres, nor whether it was being used for agricultural purposes, or a pasture in which stock was being herded or grazed.

As the information does not charge an offense under the act of 1899, relating to posted lands used for agricultural or grazing purposes upon which stock were being herded or grazed, nor under the act of 1903, amending article 804 of White’s Ann. Penal Code, relating to inclosures of less than 2,000 acres, whether posted or not, and regardless of the use to which same is being put, the motion to quash the information • and complaint should have been sustained.

The Judgment is reversed, and the prosecution ordered dismissed.  