Harvey Clark v. The State, 31 Tex. 574

Lindsay, J. — On the 15th day of September, 1865, the “ laws providing for the estraying of stock, and prescribing the course of proceedings in the same,” were still in suspension in the very terms of the statute requiring the continuance of the suspension for six months after the termination of the war. The court judicially knows when the war ceased in Texas. . The formal surrender of the belligerent force in this state took place on the 28th day of May, 1865.

The six months had not elapsed on the 15th day of September, 1865, when this offense of “taking up” and “using” an estray is alleged to have been committed. Notwithstanding the law of estraying was suspended, the penal statute against “taking up” and “using” any animal coming within the meaning of an estray was not suspended and held in abeyance along with the methods of proceeding provided for'estraying. It was still an offense to take up and use an estray without complying with the laws regulating estrays.

The policy of the law was, no doubt, to guard against what was supposed would be the inevitable abuses, practiced under the guise of the law, upon the stock of so many absent owners engaged in the war. To guard against such abuses must have been the purpose of the legislature in suspending all proceedings in estraying. Stray stock might still have been taken up and cared for till the owner should call for it. This was no offense. But to couple the use or the disposition of it with this taking up constitutes the offense which was denounced by the law.

Hence the averment in the indictment, that the taking up and using was done without complying with the laws regulating estrays, was necessary and proper. And simply because the accused could not comply with such laws affords no reason for his violation of a penal statute, but is a most potent and stringent reason why he should not have tampered with the properly at all, unless it was simply to take care of it for the benefit of the real owner. If it be taken up at the request of the owner, and then used by the taker up,, the party cannot be made amenable-to the penalty of the law.

But while this is the law of the case according to the pleading and the facts, yet we are constrained to reverse the cause for errors committed by the court on the trial.It appears, by a bill of exceptions, that the court gave a verbal instruction to the jury without the consent of the defendant or his attorney, which is in abrogation of

article 3067, Paschal’s Digest, and makes it imperative on this court to reverse whenever it appears in the record and is excepted, to by the defendant. There is an additional reason for the reversal because of the comment of the judge, in one of his written charges, upon the weight of the evidence in instructing the jury to “ look with great suspicion upon the mere-verbal authorization of a stranger claiming ownership of estray animals.” This is in direct violation of

article 3059. For these errors the case is Beverseh and remanded.