Poteet v. State , 126 Tex. Crim. 396 ( 1934 )

The conviction is for hunting deer at night with an artificial light as denounced by article 902, P. C., 1925; penalty assessed at a fine of $50.00.

From the brief of the State's attorney before this court we take the following:

"The sufficiency of the evidence to support the conviction presents a troublesome question. It shows:

"Appellant was seen driving his automobile along a public highway at night, in a community where wild deer were known to range; another party was in the car with him; the barrel of a gun or rifle was sticking out of a window of the car, and appellant was holding a flashlight in his hand, shining it out the window.

"These facts were seen by the State's witness as he was driving his car back of, and following, that of the appellant. He attempted to pass the appellant and was finally successful when he stopped appellant. A search of the car then showed that only the appellant was therein, and no gun or flashlight was found.

"It is significant to note that no shots were fired and that neither the car nor the occupants left the public highway.

"In the case of Laney v. State, 56 S.W.2d 191, where the facts were held sufficient, these facts were shown.

"While the term 'hunting' has no special significance or definition in this statute, and therefore, is to be taken in its general acceptation, yet, at any and all events, it occurs to me that this would raise nothing more than a circumstance; and, in this case, appellant excepted to the charge for failing to charge on circumstantial evidence."

Upon the present record, the conclusion of the State's attorney is adopted as expressing the views of the court, with the following statement pertaining to the Laney case, supra, cited by State's counsel in his brief: The State's evidence was to the effect that Laney, with two companions, at about midnight, while hunting along the road in a car with a spotlight which was flashed into the pastures bordering the road as the car in which said parties were slowly propelled and while so engaged, fired several shots from rifles into the pastures where the spotlight was projected and in which deer were plentiful.

The judgment is reversed and the cause remanded.

Reversed and remanded.