Day v. State

82 S.W. 667, 47 Tex. Crim. 178, 1904 Tex. Crim. App. LEXIS 263

Opinion

BROOKS, Judge.

This is a conviction for driving cattle from their accustomed range, under art. 913 Penal Code. The evidence shows, among other things, that, appellant was driving a herd of cattle by the premises of prosecutor; that the yearling in question got into the herd; that appellant tried to prevent it from following the herd. Under this state of facts appellant requested the court to charge the jury that, if appellant did not purposely drive the animal he would not be guilty. This charge should have been given. The gravamen of the offense is for wilfully driving cattle from their accustomed range; and without this intent appellant would not be guilty. It follows that the court erred in refusing appellant’s special charge.

For the error discussed the judgment is reversed and the cause remanded.

Davidson, Presiding Judge, absent. Reversed and remanded.