
    RAINS v. STATE.
    (No. 8139.)
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1925.)
    1. Animals &wkey;>36 — Proof of accused’s ownership or control of cattle essential to conviction under Tick Law.
    In' prosecution for violation of Tick Law, for failure to dip cattle, proof of accused’s ownership or control of cattle held essential to conviction.
    2. Animals &wkey;>34 — Cattle owned by wife as separate property, not under husband’s control within Tick Law.
    Under, Complete Tex. St. 1920, art. 4621 (Vernon’s Ann. Oiv. St. Supp. 1922, art. 4621), giving wife sole control of her separate estate, cow and calf, belonging to and cared for by accused’s wife, are not under his control within Tick Law.
    
      .3. Animals <&wkey;36 — Evidence held not to warrant conviction of violating Tick Law.
    In prosecution for violation of Tick Law, where uncontradicted evidence showed cattle in question had no fever carrying tick on them, conviction was not warranted.
    Appeal from Cherokee County Court; J. J. Bolton, Judge.
    G. M. Rains was convicted of violating the Tick Law, and he appeals.
    Reversed and remanded.
    M. L. Lefler, of Beaumont, for appellant.
    ^Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Cherokee county of violation of the Tick Law, and his punishment fixed at a fine of $50.

Appellant owned some cattle. In October, 1922, he sold eight head. They were inspected before he sold them and found free of ticks. In March, 1923, he was notified to dip his cattle at a certain dipping vat on April 6th following. He did not do so; hence this prosecution.

The penal features of the Tick Law are aimed at the owner, person in control, or caretaker of live' stock who violates its provisions, and in the complaint in this case it is alleged that appellant was such owner and caretaker and after due notice had failed and refused to dip his cattle. An inspection of the statement of facts shows that the state did not prove that in April, 1923, appellant owned any cattle. His wife took the stand and testified that in fact he had none at that time. She said that she had a cow and calf which had been given her by her father; that appellant owned no interest in either of them; that she attended to and cared for both of said cattle; that they ran in a small pasture and were free from ticks.

Article 4621, Vernon’s Complete Texas Statutes 1920 (Vernon’s Ann. Civ. St. Supp. 1922, art. 4621), specifically states that during marriage the wife shall have the sole management, control, and disposition of her .separate real and personal property, and when to this statement of the law is added the proof appearing in this case that the wife in fact took care of the cow and calf which were her separate property, and when it further appears that the state has offered .no testimony to combat the truth of this defensive matter, this court sees no alternative save to hold the state has failed to make out its case against appellant.

We might further add that in a special charge given, the jury were told that if they found appellant was the owner, controller, or caretaker of milk or dairy cattle, and that said cattle did not have the fever carrying tick on them, they should acquit. Two witnesses for the defense swore that they examined the cow and calf mentioned and found them free of ticks. No witness for the state testified to having made an examination and found ticks on sa-id cattle. A verdict of guilty under these facts and this special charge seems contrary to both the law and the evidence.

The judgment is reversed, and the cause remanded. 
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