McCauley v. State

• Decision Date: 01 January 1875
• Citation: 43 Tex. 374
• Parties: L. A. MCCAULEY v. THE STATE.
• Court: Texas Supreme Court

43 Tex. 374

L. A. MCCAULEY

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Burleson. Tried below before the Hon. A. S. Broaddus.

Boothe & Alexander, for appellant.

George Clark, Attorney General, for the State.

MOORE, ASSOCIATE JUSTICE.

The only question which need be considered in this case is whether the appellant is charged by the indictment preferred against him with an offense. It is alleged that appellant did “unlawfully, knowingly, and without the consent of the owner thereof, carry away from land not his own two hundred and seventy fence rails--timber under the statute--each of said rails of the value of ten cents,” &c.

The indictment was evidently drawn under article 717, “chapter 5, of cutting and destroying timber,” Penal Code, which reads as follows:

“If any person, without the consent of the owner, shall knowingly cut down or destroy any tree or timber upon land not his own, or shall knowingly and without such consent carry away any such timber, he shall be punished by fine not exceeding three times the value of the timber so unlawfully cut down, destroyed, or carried away.”

Evidently, unless the carrying away of fence rails from land not one's own is synonymous with carrying away timber, the judgment cannot be sustained. Can it be so regarded? We think not.

Timber, in its primary meaning, as given by Webster, is “that sort of wood which is proper for buildings, or for tools, utensils, furniture, carriages, fences, ships, and the like, usually said of felled trees, but sometimes of those standing.” This definition substantially accords with its popular and general meaning, and includes the sense in which it seems to be used in the statute. Fence rails, as ordinarily understood in the usual parlance of the country, are pieces of wood of suitable length and size for constructing farm and other inclosures, into which timber is split or sawed--most generally the former. But while fence rails are made from timber, the two are never used or understood as synonymous or of like import. From the definition of the word timber it bears the same relationship to wooden utensils or furniture as to fence rails. Certainly no one would think that an indictment for carrying away wooden utensils, furniture, boards, or shingles from land not one's own could be predicated upon this statute. It is not perceived that the fact of the process of manufacturing or constructing such articles from timber is not so simple or easy as the...