The record having been perfected, the appeal is reinstated and the case is now considered on its merits.
To meet the objection of the state to the consideration of the statement of facts and bills of exception, appellant's counsel has filed his affidavit wherein it is sought to show that the statement of facts and bills of exception should be considered by this court. A controverting affidavit embracing the general statement that the matters set forth in the affidavit filed by appellant's counsel do not reflect the facts is on file. The controverting affidavit fails to state the particulars in which the detailed statement relied upon by appellant is incorrect. After a careful consideration of the affidavits, we have reached the conclusion that appellant has shown himself entitled to have the statement of facts and bills of exception considered.
One hundred head of cattle owned by appellant ranged in the Dentonio pasture, which was quarantined. The fence between this pasture and the adjoining pasture was in bad repair. The fever-carrying tick having been found on stock running in the pasture, appellant was duly and properly notified to dip his cattle. The testimony of the state showed that he appeared at the appointed date and dipped 76 head of cattle. At this point we quote from the statement of facts as agreed to by the county attorney, as follows:
"The evidence showed that for three days prior to the 21st day of June, A.D. 1929 (the date appointed for dipping), that six men had worked in gathering the cattle belonging to the defendant merely for the purpose of dipping them, and that the cattle dipped were all of defendant's cattle that these six men had been able to gather in three days work."
The evidence shows that appellant made every reasonable effort to have his cattle at the dipping vat at the appointed time. We are unable to reach the conclusion that the evidence is sufficient to support the conviction.
The judgment is reversed and the cause remanded.
Reversed and remanded. *Page 88
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.
ON STATE'S MOTION FOR REHEARING.