
    SPENCER v. STATE.
    (No. 5515.)
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1919.)
    Trespass <&wkey;87 — Criminal prosecution ; variance.
    In prosecution for hunting upon inclosed lands of another without his consent, whe're defendant was informed against and tried under the statute relating to the larger class of inclosures (Vernon’s Ann. Pen. Code 1916, arts. 1255a, 1255b, and 1255c), but the evidence shows that if he violated the law it was by hunting on the smaller class of inclosures (article 1255), the judgment will be reversed.
    Appeal from Chambers County Court; Joe E. Willson, Judge:
    W. T. Spencer was convicted of hunting upon the land of another without authority and without consent of the owner, and he appeals.
    Reversed and remanded.
    M. M. Carter, of Goose Creek, and Guynes & Coi gin, of Houston, for appellant.
   DAVIDSON, P. J.

The complaint and information seem to have been brought under articles 1255a, 1255b, and 1255c, of Vernon’s Ann. P. C., and section 2278 and its various subdivisions as found in Branch’s Ann. P. C., at page 1252. These provisions provide a punishment for any person who hunts without .authority and' without consent of the owner upon inclosed or posted lands.of another, the punishment for a violation being not to exceed $200. That statute refers to inclosed lands of 2,000 acres or more. The evidence shows, for the state, that appellant hunted upon the inclosed lands of another, without consent, the inclosure containing not more than 600 acres, the punishment for a violation of which is not less than $10 nor more than $100.

Exceptions were urged against the pleadings, which were overruled. There was a question of variance between the allegations and proof, and error in the court’s charge and refusal to give special instructions. Without taking up these matters seriatim, the case may be disposed of upon the proposition that appellant was tried under a statute which does not apply to the facts, and ■the court gave an erroneous instruction as to the punishment. In other words, if appellant violated the law, he did so by hunting on the inclosed land of another, the amount of the inclosure not exceeding 600 acres. He was informed against and tried under the statute which relates to the larger class of inclosures. Under the authority of Berry v. State, 69 Tex. Cr. R. 602, 156 S. W. 626, this judgment will have to be reversed. If a prosecution is sought hereafter, it should be under article 1255 of Branch’s Ann. P. 0., found on pages 1251 and 1252, and not under the article which has reference to the larger inclosures.

The judgment is reversed, and the cause remanded 
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