69 S.W.2d 416
KEILS 
v. 
STATE.
No. 16493.
Court of Criminal Appeals of Texas.
March 7, 1934.
        Commissioners' Decision.
        Appeal from Freestone County Court; A. H. Benbrook, Judge.
        A. D. Keils was convicted of drifting cattle into quarantined territory, and he appeals.
        Reversed and remanded.
        A. B. Geppert, W. V. Geppert, and Ellen Victery, all of Teague, for appellant.
        Lloyd W. Davidson, State's Atty., of Austin, for the State.
        CHRISTIAN, Judge.
        The offense is drifting cattle into quarantined territory; the punishment, a fine of $5.
        A live stock sanitary inspector of Freestone county testified, in substance, as follows: One of the 
dipping vats in his charge was situated approximately a mile and a half from the line between Leon and 
Freestone counties. On the 7th of July, 1932, he saw at this vat a steer branded "Half Circle A" and 
marked "under slope" in each ear. This was the brand used by appellant. The regular range of appellant's 
cattle was in Leon county. He did not know how the steer "came to be at the vat in Freestone County." 
Edgar Conaway, a witness for the state, testified that he saw the steer in question at the dipping vat on 
the 7th of July, 1932. He testified further that appellant's vat was located in Leon county. J. S. Ivy 
testified that appellant's vat was situated in Leon county about a mile from the line of Freestone and Leon 
counties. He testified further that he did not know who owned the steer with the brand "Half Circle A" on 
it.
        H. C. Gore, a witness for appellant, testified that appellant's vat was about three miles from Brice 
Cunningham's home and that the steer in question was driven by Brice Cunningham with his 
(Cunningham's) cattle to the dipping vat in Freestone county on July 7, 1932. He testified that he saw the 
steer with Cunningham's cattle. Again, his testimony was to the effect that cattle frequently drifted over 
the county line from Leon county to Freestone county and vice versa. He testified, further, that it was 
impossible to
Page 417
prevent cattle from going from one territory to another where the range was open, as it was in the vicinity 
of the county line. Brice Cunningham, testifying for appellant, corroborated the witness Gore as to driving 
the steer with his cattle to the dipping vat. He testified that the steer had taken up with his cattle, and 
that, as he was driving his own cattle to the vat for the purpose of dipping, he took the steer along. 
Appellant did not tell him to drive the steer to the dipping vat in Freestone county, and, as far as he knew, 
appellant did not know that the steer was with his cattle.
        Under the charge in the complaint, it was incumbent upon the state to prove beyond a reasonable 
doubt that appellant permitted and allowed the steer to drift from Leon county into Freestone county. The 
state introduced no testimony as to any act or omission on the part of appellant indicating that he had 
anything to do with the drifting of said steer into Freestone county. The evidence was undisputed that said 
animal had taken up with the cattle of Mr. Cunningham, and that, without any suggestion upon the part of 
appellant, he (Cunningham) had driven the animal to the dipping vat with his own cattle. In the state of 
the record, we are unable to reach the conclusion that the evidence is sufficient to support the conviction. 
The state's attorney before this court confesses error.
        The judgment is reversed, and the cause remanded.
        PER CURIAM.
        The foregoing opinion of the Commission of Appeals has been examined by the 
judges of the Court of Criminal Appeals and approved by the court.