Allison v. State

26 S.W. 1080, 33 Tex. Crim. 501, 1894 Tex. Crim. App. LEXIS 146

Opinion

DAVIDSON, Judge.

This conviction was for knowingly causing a herd of sheep to go within the inclosed lands of Wilson, Tankersly & Williams, without their consent. Penal Code, art. 684. The recognizance recites, that he “stands charged with unlawfully causing a herd of sheep to go within the inclosed lands of Wilson, Tankersly & Williams, and who has been convicted of said offense.” To constitute a violation of said statute the party accused must “knowingly cause” the stock “to go within the inclosed lands of another without his consent.” The recognizance is fatally defective in not alleging appellant “knowingly” caused the sheep to go within said inclosed lands, and in failing to negative the consent of the alleged owners. Unless he “knowingly” caused the sheep to go therein he could not be convicted, nor could the prosecution be maintained if he had the consent of either owner to cause them to enter thereupon. This offense is not one eo nomine, wherefore the ingredients of the offense must be set out in the recognizance. Willson’s Crim. Stats., sec. 2650. Without a proper and legal recognizance, jurisdiction will not attach in this court to appeals in misdemeanor causes, unless the party be in jail.

The motion of the Assistant Attorney-General is sustained, and the appeal is dismissed.

Dismissed.

Judges all present and concurring.