THE ESTRAY CASES. The State v. Thomas J. Harvey; The State v. Edward J. Ribble; The State v. Lewis Stephens; The State v. Riley Cross, 28 Tex. 632

Smith, J. —The appellee was indicted for taking up and using an estray horse without complying with the laws regulating estrays. Upon his exception to the indictment for insufficiency it was quashed, to which ruling the State excepted, and brings the case to this court by appeal. No specific grounds were assigned in the motion to quash the indictment, nor does the defendant appear here and make more specific objections to it.

It is supposed, however, that it was quashed upon the grounds, that the laws providing for estraying stock were suspended until six months after the termination of the then existing war, by act of December 7, 1863. (Acts 10th Leg., p. 8; Paschal’s Dig., Art. 3702.) It will be seen that this act did not properly suspend the estray laws, but only modified them, and made them applicable for the time alone to “vicious” or “breachy” animals, so unruly as to be dangerous and unfit to run at large; and it further provided, that persons who had estrayed animals before the passage of this law might sell them. The

article (7755, O. & W. Dig., Penal Code,) under which the defendant was indicted, reads as follows: “If any person shall, without complying with the laws regulating estrays, take up and use, or otherwise dispose of, any animal coming within the meaning of an estray, he shall be punished as prescribed in the preceding article.” If the total repeal or suspension of the estray laws could have been construed as thereby repealing or suspending

article 775 b aforesaid, which we are not prepared to admit, or, to say the least of it, is attended with much doubt, still, we are uf opinion that the act of December, 1863, aforesaid, didjnot affect

article 775 b aforesaid, so as to make it necessary to draw an indictment otherwise than to follow the words of the

article as set forth in the indictment in this cause.

It is urged with much plausibility, that the sole object which the legislature intended to accomplish by the act of December 7, 1863, was, to prevent persons, who were at home and not in the army, from taking up and using the stock of others, who were compelled to be absent from home for years in defense of the country, and were deprived of the opportunity of looking after their stock and to prevent the stock from straying off into the hands of others, to be used and perhaps destroyed: and that it intended to make it an offense, for the time specified, (during the war and six months thereafter,) for any person to take up and use an estray which was not likely to injure any person or property; and to place it out of the power of those remaining at home to profit upon the use of the stock of their neighbors who were necessarily absent in the army.

Any other construction of this act would seem to involve this singular conclusion, that it would amount to no crime to take up and use an inoffensive estray, but it would be an offense to take up and use a vicious or breachy animal without complying with the estray> laws on the subject; in other words, that the soldier and absent person had the criminal laws of the country to protect him in his rights to any vicious or breachy animal he owned, but that code of laws paid no respect to his rights to inoffensive stock, and that it might be taken up and used with impunity, so far as the criminal laws are. concerned, provided the offense of theft was not involved in the taking up of the estray.

However it may be determined, we now deem it '■unnecessary to decide that question, and for the error in quashing the indictment the judgment below is reversed and cause remanded. This opinion and order will apply to the following cases: No. 2996, The State of Texas v. Lewis Stephens; No. 2989, The State of Texas v. Edward J. Ribble; No. 3004, The State of Texas v. Riley Cross; All of which are Eeversed and remanded.