
    BODNER v. STATE.
    (No. 11227.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    Fish <@=»I3(I) — One fishing upon inclosed land of another without catching any fish held not guilty of offense against game law (Pen. Code 1925, art. 1377).
    Person merely fishing on inclosed land of another who failed to catch or take fish held not guilty of violation of Pen. Code 1925, art. 1377. which provides that no one shall “catch or take any fish from any pond, lake, tank or stream” on another’s inclosed land, “or in any other manner depredate upon the same.”
    Appeal from Palo Pinto County Court; E. L. Pitts, Judge.
    George Bodner was convicted of an offense against the game law, and he appeals.
    Reversed and remanded.
    P. C. Sanders, of Strawn, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Appellant was charged with an offense against the game law of the state; punishment fixed at a fine of $10.

The prosecution is under article 1377, P. C. 1925, which declares, in substance, that one entering upon the “inclosed land of another without the consent of the owner, * * * and therein hunt with firearms or therein catch or take any fish from any pond, iake, tank or stream, or in any other manner dep-redate upon the same, shall be fined,” etc. The information charges that appellant went upon the inclosed land of the owner, and “did then and there depredate upon said property, and did then and there fish in the No. 3 mine tank.” The evidence shows that the appellant went upon the premises and fished with a pole and line, but it fails to show that he caught any fish. It is manifest that the only depredation relied upon is that of fishing. It is believed that, under the statute, fishing does not constitute an offense Unless fish be caught or taken from the pond, lake, or stream.

The judgment is reversed and the cause remanded. 
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