McElroy v. State , 39 Tex. Crim. 529 ( 1898 )

Appellant was convicted for unlawfully and willfully turning out, and causing to be turned out, on lands not his own, and for failing to keep up, certain hogs, and allowing them to trespass upon the lands of another, in Cherokee County, after the local option stock law had been put into operation in said county by a vote of the people of said county. The statute under which the law was put into operation authorized the party whose property was trespassed upon to impound the stock so trespassing. Such was the law when the people of said county voted it into existence. This law went into effect in Cherokee County on the 5th of April, 1897. By an Act of the Twenty-fifth Legislature (page 112), which went into operation in August, 1897, it was made a misdemeanor to willfully permit said stock to run at large in such local option territory, punishable by a fine of not less than $5 nor more than $50. It is urged by appellant that, if the Legislature had the authority to pass such law, it could not become operative in the territory where the law was then in existence; that a violation of the law as voted by the people was not punishable by fine, nor was it made a violation of the law for them to turn out their stock; that the only redress under such state of case was a civil remedy. Without going into the question, or the reasons for the decisions, further than as stated in former opinions of this court, we believe this position is sound. See Dawson v. State, 25 Texas Crim. App., 670; Robinson v. State, 26 Texas Crim. App., 82; Lawhon v. State, 26 Texas Crim. App., 101.

It is further contended by appellant that the election was void because the order of the court directing the election was to determine whether "hogs, sheep, or goats" should be prohibited from running at large in said county, whereas the petition was to determine whether "hogs, sheep, and goats" should be prohibited from running at large in said county. But, as submitted and voted upon, it would seem that they voted in the alternative; and therefore it is impossible to determine whether they intended to prohibit the running at large of one or all kinds of said stock. It therefore appears that this point is well taken. The judgment is reversed and the prosecution ordered dismissed.

Reversed and dismissed.

HURT, Presiding Judge, absent.