State v. Mills

• Decision Date: 08 January 1912
• Citation: 142 S.W. 477,161 Mo. App. 179
• Parties: STATE v. MILLS.
• Court: Missouri Court of Appeals

142 S.W. 477

161 Mo. App. 179

STATE v. MILLS.

Springfield Court of Appeals. Missouri.

January 8, 1912.

1. ANIMALS (§ 102) — OFFENSES — HERDING CATTLE AT LARGE—EVIDENCE—SUFFICIENCY.

Evidence held to sustain a conviction for driving cattle into a county to be herded and grazed upon unimproved and uninclosed lands, in violation of Rev. St. 1909, § 794.

2. STATUTES (§ 190)—CONSTRUCTION—JUDICIAL POWER.

Courts cannot depart from the language of an unambiguous statute.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

John Mills was convicted of driving cattle into a county to herd them upon uninclosed lands, and he appeals. Affirmed.

George B. Wilson and Patterson & Patterson, for appellant. Fred. W. Barrett, Pros. Atty., for the State.

NIXON, P. J.

On May 17, 1910, before a justice of the peace within and for Christian county, the prosecuting attorney filed an information charging that on or about the 1st day of May, 1910, John Mills did then and there unlawfully, willfully, take and drive from one county to another in the state of Missouri, to wit, from Douglas county, Mo., to Christian county, Mo., neat and horned cattle, to wit, 100 head of steers and 10 head of cows, for the purpose of herding and grazing, and causing the same to be herded and grazed, upon the unimproved and uninclosed lands and premises of the said Christian county, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state. On June 13, 1910, upon trial before the justice, defendant was found guilty, and his punishment assessed at a fine of $50. An appeal was perfected to the circuit court of Christian county, and the case was tried at the August term, 1910, before a jury, resulting in a verdict of guilty and punishment assessed at a fine of $25. Defendant has appealed.

It was admitted upon the trial that the provisions of article 5, c. 6, R. S. 1909, restraining animals from running at large, had never been adopted either in Douglas county or in Christian county. This prosecution is under section 794, R. S. 1909, which provides as follows: "It shall be unlawful for any person to take or drive from any one county to another in this state, or from one range to another in the same county, any neat or horned cattle, mules, horses or sheep, for the purpose of herding or grazing, or causing the same to be herded or grazed, upon any of the unimproved or uninclosed lands or premises in this state. Any person violating any of the provisions of this section shall, upon conviction thereof, be punished by a fine not exceeding two hundred dollars." Section 796 in the same article and chapter is in part as follows: "Provided, that the provisions of this article shall not be so construed as to prevent any * * * resident of this state who resides in any county which has not adopted the provisions of article 5, chapter 6, Revised Statutes of 1909, from allowing his cattle to go at large on the range of the locality where he resides." The greater part of the evidence in the record concerns some 70 or 80 head of cattle belonging to defendant which were seen on the range in Christian county some six miles from where the defendant resided during the spring and summer of 1910. The evidence showed that defendant's home was at his mother's farm, the west boundary of which was on the Christian and Douglas county line, the dwelling house being about one-half mile east of the west line of Douglas county and the east line of Christian county. The evidence showed that within three or four miles of defendant's home there was a range of wild, unimproved, and uninclosed lands that was used by the residents of that locality as grazing ground for their stock and cattle, and that this range extended over territory covering a space of six or seven miles, and that about three or four miles of said range was in Christian county and the balance of the same was in Douglas county. There was scarcely any range where defendant resided, and what little there was consisted of pea grass which furnished some feed for cattle in the fall; and this was about all the range there was from defendant's residence west to the Christian county line. From the east line of Christian county west a distance of a mile the farms were few, and the range consisting of wild grass was better than that east of the Christian county line, the best range being about 1½ miles from the east line of Christian county, and extending west in Christian county a distance of 6 or 7 miles. The testimony of all the witnesses except that of Perry Hurst was that they merely saw 60 or 70 of defendant's cattle on that range. The defendant testified that some 75 head of his cattle were fed on his mother's farm in Douglas county, and that later in the spring they were all on the range in Christian county. Perry Hurst stated that on April 10, 1910, he saw the defendant driving about 50 or 60 head of cattle toward the west...