The complaint and information seem to have beep brought under Articles 1255a, 1255b and 1255c of Vernon's Ann. P.C., and Section 2278 and its various subdivisions as found in Mr. Branch's Ann. P.C., at page 1252. These provisions provide a punishment for any person who hunts without authority and without consent of the owner upon inclosed or posted lands of another, the punishment for a violation being not to exceed two hundred dollars. That statute refers to inclosed lands of two thousand acres or more. The evidence shows, for the State, that appellant hunted upon the inclosed lands of another, without consent, the enclosure containing not more than six hundred acres, the punishment for a violation of which is not less than ten nor more than one hundred dollars.
Exceptions were urged against the pleadings, which were overruled. There was a question of variance between the allegations and proof, and error in the court's charge and refusal to give special instructions. Without taking up these matters seriatim, the case may be disposed of upon the proposition that appellant was tried under a statute which does not apply to the facts, and the court gave an erroneous instruction as to the punishment. In other words, if appellant violated the law he did so by hunting on the enclosed land of another, the amount of the enclosure not exceeding six hundred acres. He was informed against and tried under the statute which relates to the larger class of enclosures. Under the authority of Berry v. State, 69 Tex.Crim. Rep., this judgment will have to be reversed. If a prosecution is sought hereafter it should be under article 1255 of Branch's Ann. P.C., found on pages 1251 and 1252, and not under the article which has reference to the larger enclosures.
The judgment is reversed and the cause remanded.
Reversed and remanded.