This action for damages was filed in the County Court of Fisher County by the plaintiff, Clint Overby, against the defendants, P. H. Jackson of Tom Green County, W. M. Jackson of Reagan County, and Roy Spires of Nolan County, individually and as a partnership. The parties will be referred to herein as in the trial court.
Plaintiff alleged that on or about September 14, 1943, he was a tenant in possession of certain lands in Fisher County, and that he had growing upon such land a crop of cotton, hegari and maize, and that the defendants were the joint owners of a considerable number of cattle which normally grazed upon the land adjoining plaintiff’s property, and that plaintiff had a good four wire fence around said field capable of turning ordinary animals, but that defendants’ cattle broke into the land of plaintiffs and destroyed his crops. That there was a stock law prohibiting the running at large of cattle in Fisher County, and that the defendants permitted the said cattle to roam at large and made no effort to restrain them, and negligently and unlawfully permitted them to run at large and break into and damage plaintiff’s crops. Plaintiff also alleged that he requested defendants to take such steps as were neces*766sary to prevent the re-occurrence of such offense, but that the defendants failed and refused to do anything and refused to drive such cattle off of plaintiff’s premises.
Each defendant filed a separate plea of privilege to be sued in the county of his residence. Plaintiff controverted each plea and attached to his controverting affidavits his second amended original petition and made the petition a part of such controverting affidavits, and sought to hold venue in Fisher County under Article 1995, exception 9, Revised Civil Statutes of Texas, on the grounds that the defendants had committed an offense against the stock laws of the State and a trespass in Fisher County.
Prior to the trial on the merits a hearing was had upon such pleas of privilege before the court without a jury, and the court, after hearing the evidence, overruled such pleas, to which action defendant duly excepted. Thereafter, the case was tried upon its merits before the court with the aid of a jury, and, based upon the findings of the jury, a judgment was entered against defendants in favor of the plaintiff in the sum of $500. Upon the overruling of a motion for new trial, defendants gave notice of appeal to this court.
Upon the trial of the pleas of privilege the plaintiff, Clint Overby, was the only witness offered by the plaintiff. The defendants offered no testimony. The plaintiff testified he had read the controverting affidavits and his second amended original petition in this case, and that the allegations contained therein were true and correct. The defendants objected to the admission of such testimony upon the grounds that it called for an opinion and conclusion of the witness and necessarily required the witness to place his own interpretation upon the effect of the allegations in said pleadings and invaded the province of the court trying the case, and that the witness should be required to testify as to the specific facts, rather than to his conclusion that such pleadings properly stated the facts. We are of the opinion that such evidence was inadmissible and that the objections thereto should have been sustained.
With that portion of plaintiffs testimony excluded, .we must then consider the other evidence and ascertain whether or not it is sufficient to sustain the court’s action overruling the pleas of privilege.
In order for plaintiff to sustain venue in Fisher County, it would be necessary for him to show that the defendants violated the stock laws or that they committed a trespass in Fisher County. In an opinion by the San Antonio Court of Civil Appeals in Thomas v. Meyer, 168 S.W.2d 681, which was thereafter approved by the Supreme Court in Mercer v. McCurley, 176 S.W.2d 923, the court said:
“As to the character of the action and by way of summary, the holding of this Court is that in order to make applicable the ‘crime’ clause of exception 9 of Article 1995, the suit alleged in plaintiff’s petition must be one in which the basis of liability of the defendant to the plaintiff is some act or omission for which act or omission the defendant is liable to punishment under the Penal Code.” [168 S.W.2d 686.]
Article 1369 of Penal Code provides as follows:
“Whoever shall wilfully turn out or cause to be turned out on land not his own or under his control or wilfully fail or refuse to keep up any stock, prohibited by law from running at large in any county or subdivision of any county in which the stock law has been adopted, or wilfully allow such stock to trespass upon the land of another in such county or subdivision thereof, or wilfully permit to run at large any stock of his own, or of which he is the agent or of which he has the control, and not permitted to run at large in any county or subdivision of any' county in which the stock law has been adopted, shall be fined not less than five nor more than fifty dollars.”
Article 1370 of the Penal Code is as follows:
“Whoever shall knowingly permit any horses, mules, jacks, jennets, and cattle to run at large in any territory in this State where the provisions of the laws of this State have- been adopted prohibiting any of such animals from running at large shall be fined not less than five nor more than two hundred dollars.”
We understand that a necessary element of the offenses defined above is an intention to do the act complained of or such negligence as is tantamount to a wilful act. 39 Tex.Jur. 373. As said by Judge Williams in Texas & P. Ry. Co. v. Webb, 102 Tex. 210, 114 S.W. 1171, 1173:
“While the stock law is intended to require owners to confine animals, the run*767ning at large of which is prohibited, and one who permits them to run at large violates the law, it is true, nevertheless, that such animals may often escape without fault on the part of their owners, when the latter will be guilty of no offense against the law.”
In Phinney v. State, 59 Tex.Cr.R. 480, 129 S.W. 628, it was held that the court erred in refusing to instruct the jury that they acquit the defendant if they believed he had stock in his enclosure and had reason to believe the same was sufficient to hold them and they escaped without his knowledge and consent and he used reasonable diligence to keep them from running at large.
We have made a careful examination of the statement of facts in this case. The evidence shows that plaintiff’s field on which he had his growing crops was surrounded by the pasture land of the defendants. The plaintiff plead he had a good four wire fence capable of turning ordinary cattle around his field, that he built the fence and at all times while he was living on the land he had been keeping the fence in repair. That the defendants had furnished him with posts for repairing the fence. He further testified that the foreman of the defendants had been trying to keep the cattle out of his field, and that part of the time he did keep them out and that at other times he could not keep them out of the fields. That the cattle had broken into his field several times during the year 1943. That there was no green in the pastures, and that they (the cattle) would break through into the fields.
Under the evidence we believe the plaintiff failed to show the necessary elements of a violation of the stock law.
Upon the question of trespass it would be necessary for the plaintiff to show that the defendants were guilty of active negligence, not some mere passive negligence or omissions of duty. We are of the opinion the evidence fails to show such trespass, citing in support thereof Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062; Carey v. Smith, Tex.Civ.App., 168 S.W.2d 889; Cline v. Lewis, Tex.Civ.App., 168 S.W.2d 705.
Defendants contend that the proof offered is insufficient to show that the stock law was in effect in Fisher County. We have given this question considerable thought and study and have some doubt as to the sufficiency of such proof, but in view of the fact that this case must be reversed upon another ground, we do not pass directly on this point.
Because the evidence is insufficient to show a crime or trespass committed in Fisher County, we reverse the judgment, and believing the case was not fully developed, we remand the cause for a new trial.