
    NEUVAR v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    1. Animals (§ 50) — Stock Laws — ConsteucTION.
    The first stock laws applied only to hogs, sheep, and goats, and when, in Í897, it was first made a penal offense to permit stock to run at large after the stock law had been adopted, only the law relating to hogs, sheep, and goats was in force. Thereafter the stock law was extended to horses and cattle, and by Acts 26th Leg. c. 128, as amended by Acts 30th Leg. c. 57, it was made an offense to permit such animals to run at large. The two provisions are found in Pen. Code 1911 as articles 1241,1249; the first being Acts 25th Leg. c. 87, and the latter the act of 1899. Held, that only the act of 1899 applies to a violation of the stock laws by permitting horses and cattle to run at large, after the adoption of the stock law.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157;. Dec. Dig. § 50.]
    2. Animals (§ 50) — Stock Laws — Adoption.
    Under Rev. Civ. St. 1911, art. 7238, providing that the petition for an election to prevent horses and cattle from running at large shall set forth clearly the classes of animals which the petitioners desire not to run at large, and, if the petition be for a subdivision of any county, the subdivision shall be particularly described, incorporated towns, included either within the subdivision or within the county, become subject to the stock law, if it is adopted, and hence, in a prosecution for violating the stock law, evidence of ordinances of an incorporated town included in the subdivision is admissible.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    3. Municipal Corporations (§ 592) — Ordinances — Adoption.
    Under Code Or. Proc. 1911, art. 965, providing that mayors and recorders of incorporated towns .shall have concurrent criminal jurisdiction with justices of the peace, but that no person shall he punished twice for the same act or omission, although it may be an offense against the penal laws of the state, as well as the ordinances of a city, and that no ordinance shall be valid which provides a less penalty for any offense than is prescribed by the statutes, an ordinance denouncing an offense denounced by the general law must prescribe the same penalty and is admissible in evidence in a prosecution for such violation.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1311-1314; Dec. Dig. § 592.]
    4. Animals (§ 50) — Stock Laws — Defenses.
    In a prosecution for a violation of the stock law, where accused’s land and the place where he allowed his animals to run at large was clearly within the limits of the subdivision which adopted the law, the fact that the description of that subdivision was not accurate, and omitted a strip of territory leaving a hiatus between the two parts, was no defense.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    5. Criminal Law (§ 1165) — Appeal and Error — Harmless Error.
    In a prosecution for violating the stock law, accused cannot complain of a charge which placed an additional burden on the state; that being to his benefit.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3085, 3086, 3088, 3089; Dec. Dig. § 1165.]
    Davidson, X, dissenting.
    Appeal from Lavaca County Court; P. H. Green, Judge.
    Ed Neuvar was convicted, of violating the stock law, and he appeals.
    Affirmed.
    Paulus & Ragsdale, of Hallettsville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      Furothor cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted and fined for violating the stock law, making it an offense to knowingly permit cattle, etc., to run at large where the stock law had been adopted at an election held therefor.

The prosecution was had under article 1249, P. C., based on article 7235 et seq., tit. 124, c. 6, of the Revised Statutes, Civil. By section 23, art. 16, of our Constitution of 1875, the Legislature was expressly authorized to pass laws for the regulation of live stock and the protection of stock raisers, and to exempt from the operation of such laws other portions, sections, or counties of the state. By a proviso in said section, it was provided that any local law thus passed should be submitted to the freeholders of the section to be affected thereby, and approved by them before it should go into effect.

It is unnecessary for us to recite the respective acts of the Legislature on this subject; they are shown by the citation to the respective acts in our Revised Statutes, Civil, and the articles of the Revised Code of 1911. The first enactment under this constitutional provision was in 1876, soon after the Constitution went into effect, and it provided for such election putting it in force to apply exclusively to hogs, sheep, and goats. For many years there was no criminal law making it an offense; but the law merely provided for impounding the stock; and subjecting it and the owner thereof to the damages incurred, costs, expenses, etc., by civil remedy alone. The first time the Legislature made it a penal offense to violate said law was the act 6f 1897, p. 112, now article 1241 of the 1911 Penal Code. While that act was general, there was no law which could be adopted by a vote of the people which applied to other than hogs, sheep, and goats. The provision of the law as to hogs, sheep, and goats is chapter 5, tit. 124, art. 7209 et seq., of the present Revised Statutes, Civil. As stated above, the provisions of the stock law as to horses, cattle, etc., is the next chapter of said Revised Statutes, and is entirely separate and distinct therefrom. The first time, it seems, the Legislature passed any act providing for such law to be adopted by vote was the act of 1899, p. 220. This law was amended by the act of 1907, p. 123, which, for the first time, prescribed an offense and the punishment therefor for violation thereof by any one permitting any horses, cattle, etc., to run at large. In the present Revised Statutes and Penal Code it seems reasonably certain that the Legislature intended that article 1241, P. C., should apply more particularly, if not exclusively, to hogs, sheep, and goats, and that article 1249 should apply to horses, cattle, etc. The said two articles of the Penal Code are taken, in the revision, from the general bills of the several acts on tie subject.

None of the statutory enactments providing for the adoption by vote of either of said stock laws excluded the incorporated towns or cities from being embraced within the territory designated within which such stock law should apply. On the contrary, all the statutory enactments clearly provide that the whole of the county, which, of course, would embrace any and all incorporated cities and towns therein, as well as when the election, is for any subdivision of such counties, shall or may be included, because it gives expressly the petitioners, who petition the commissioners’ court for an election in such precinct, the right and power to designate such subdivision of a county in their petition, and particularly describe the same by designated boundaries. Article 7238, R. S. This court and the civil courts of this state have all expressly held that this can be done, and that the act so providing is constitutional. Thompkins v. State, 47 Tex. Cr. R. 359, 83 S. W. 379; Roberson v. State, 42 Tex. Cr. R. 597, 63 S. W. 884; Armstrong v. Traylor, 87 Tex. 598, 30 S. W. 440; Graves v. Rudd, 26 Tex. Civ. App. 554, 65 S. W. 64. So that we think it is clear that the petition for the election in a certain part of Lavaca county designated by metes and bounds in the petition, the orders of the commissioners’ court, and in the adoption of the act, were perfectly legal and valid, although it embraced three incorporated towns within its boundaries; and that the freeholders within said incorporated towns could vote at such election the same as a freehold voter in any other part of the territory. Roberson v. State, supra. Besides this, even if the Legislature had the power and authority (which is unnecessary for us to decide herein) to except from any such subdivision any incorporated town or city, the appellant’s bill, nor the- record in this case otherwise, shows under what authority either of said towns were incorporated, nor the provisions of the charter thereof which would show that the Legislature had attempted to make any such exception. We do not regard the case of Reuter v. State, 43 Tex. Cr. R. 572, 67 S. W. 505, as applicable to the questions presented in this case. Hence the court did not err in permitting appellant to introduce the ordinances of the city of Hallettsville in evidence. The bill, nor record elsewhere, does not show what the penalty such ordinances prescribed for a violation of said law was. Under all the authorities and the statute, it could not be less nor greater. It had to be the same to be valid, and a prosecution and conviction under either the state or city law would be a bar to a prosecution under the other. Article 965, C. C. P.

The court did not err in telling the jury in the charge that the boundaries of the district in which said stock law had been adopted was sufficient to embrace the territory therein described. The point appellant makes on this question is that, because one witness testified that ‘‘there exists an open space or hiatus of about 300 or 400 varas between the southwest corner of the R. Cummings survey and the southeast corner of the A. Sherrill league; that is to say, the southwest corner of the R. Cummings survey and the southeast corner of the A. Sherrill league do not meet,” therefore the field notes of the territory embraced is insufficient to describe and designate any territory. The uncontra-dicted testimony shows that the witness took the county map, at the instance of both the state and the appellant, while testifying, and traced the lines in accordance with the calls of the whole territory so as to show, and he did testify, that the tract of land on which appellant lived, and where his stock was shown to run at large, was within said territory; that part of the field notes designating the prohibited territory is thus described: “Thence with the south line of said league [Cheeney league] to the south comer of same-on the east line of the R. Cummings survey; thence with the east line of the last-named survey to the southeast corner of same; thence with the south line of said survey to-the south corner of same; thence west with the south line of the A. Sherrill league to the-south corner of same on the Lavaca river.” So that it is seen from these calls that the southwest comer of the Cummings survey is not called for, nor is the call from that corner of the Cummings to the southeast corner of the Sherrill league made. It would make no difference even if there should be an-open space or hiatus between the southwest corner of the Cummings and the southeast corner of the Sherrill league; but, in accordance with the call of the designated territory, the line would be straight from the south corner of the Cummings survey west to and with the south line of the Sherrill league, and it would inclose and embrace the territory without question. It might be that there might be some discrepancy on the ground between the calls made by which a given territory would be on the inside or outside of such line; but that question does not arise in this case, because the whole survey of land on which appellant’s place was situated, and the territory where his stock was shown to have been permitted to run at large, was not of any of such disputed territory on. such line. Williams v. State, 52 Tex. Cr. R. 371, 107 S. W. 1121; Stewart v. State, 153 S. W. 1153; Jones County Judge v. Carver, 29 Tex. Civ. App. 268, 67 S. W. 780.

As stated above, article 1249, P. C., applies to the statutes prohibiting horses, cattle, etc., from running at large, and article 1241, P. C., to hogs, sheep, and goats. The court, therefore, did not err in telling the jury that the penalty for a violation of the former was a fine of not less than $5 nor more than $200, instead of telling them, under the latter article, that the fine was not less than $5, nor more than $50. The court, in his charge, required the jury to expressly find, among other things, that appellant did unlawfully, willfully, and knowingly permit his said cattle to run at large in said prohibited territory in Lavaca county before they could find him guilty. This was an additional burden on the state not required by the article under which the prosecution was had; but that was to appellant’s advantage, and not to his disadvantage..

We have not taken up in consecutive order appellant’s various assignments; but what we have said disposes of all of them adversely to him.

The judgment is affirmed.

DAVIDSON, J.

I think this case ought to be reversed, and therefore dissent. I deem it unnecessary to write further than to refer to what I have heretofore written in other eases, and also to prior decisions of the court.  