
    4155.
    Bray v. The State.
    Decided May 22, 1912.
    Accusation of misdemeanor; from city court of Lexington— Judge Cloud. February term, 1912.
    
      E. P. Shull, for plaintiff in error.
    
      Hamilton McWhorter Jr., solicitor, W. W. Armistead, contra.
   Pottle, J.

1. The accused being on trial for unlawfully breaking a pound and releasing an animal, in violation of § 584 of the Penal Code of 1910, and the evidence demanding a finding that he and a person who had been deputized as a bailiff by a justice of the peace took the animal from the pound, under a possessory warrant apparently valid and regularly issued by the justice, the conviction was without evidence to support it. This is so even though the person designated as bailiff may not have been qualified to act, it appearing that both he and the magistrate in good faith believed he had been regularly and lawfully appointed. The act of taking the animal under the warrant being apparently lawful, and there being no evidence to show knowledge on the part of the accused that the person acting as bailiff had not been lawfully appointed, the element of criminal intent was wanting.

2. Evidence was irrelevant that after the accused acquired possession of the animal under the possessory warrant, it was again taken from his possession, under another warrant, and turned over to a person other than the one who impounded it, and that the accused attempted to use the original possessory warrant for the purpose of taking the animal from the possession of the latter person. Judgment reversed.  