State v. Thomas J. Harvey. the State

Decision Date31 October 1866
Citation28 Tex. 632
CourtTexas Supreme Court

The 1st section of the act of December 7, 1863 (Laws 10th Leg. p. 8), reads as follows: “From and after the passage of this act, all laws and parts of laws providing for the estraying of stock, and prescribing the course of proceedings in the same, and of selling stock heretofore estrayed, shall be in all things suspended for and during the existence of the present war, and until six months after peace shall be concluded, with the exceptions hereinafter mentioned.” Pas. Dig. art. 3702.

This did not in a proper sense suspend, in toto, the estray laws, but only so modified them as to make them, for the time specified in the act, applicable only to “vicious” or “breachy” animals, so unruly as to be dangerous and unfit to run at large. Pas. Dig. arts. 3703, 3704.

The object and policy of the act were to prevent other than breachy animals to be taken up and used by those remaining at home while the soldiers were in the field. It was not intended to withdraw protection from safe animals.

The act above referred to did not abrogate article 775 b of the penal code, nor so affect it as to necessitate any change in the form of indictments founded upon it. Paschal's Dig. art. 2440.

APPEAL from Johnson. The case was tried before Hon. JOHN J. GOOD, one of the district judges.

The character of these cases is sufficiently apparent from the opinion of the court, which was delivered in the case against Harvey, but is made applicable to the others. The defendants were indicted under article 775 a of the penal code, which reads as follows: “If any person shall unlawfully remove, sell, or in any other manner dispose of any animal which has been taken up by him as an estray, he shall be punished by fine not exceeding double the value of the property so unlawfully disposed of.” Pas. Dig. art. 2440. The indictments were quashed, under the belief that the law, “to suspend the operations of the estray laws, for and during the existence of the present war and for six months afterwards, except in certain cases,” suspended not only the right to take up and use estray animals, but also the right to punish for taking up and using such animals. Pas. Dig. arts. 3703 to 3705. The state appealed.

No briefs on either side furnished to the reporter.


The appellee was indicted for taking up and using an estray horse without complying with the laws regulating estrays. Upon his exception to the indictment for insufficiency it was quashed, to which ruling the state excepted, and brings the case to this court by appeal.

No specific grounds were assigned in the motion to quash the indictment, nor does the defendant appear here and make more specific objections to it. It is supposed, however, that it was quashed upon the grounds, that the laws providing for estraying stock were suspended until six months after the termination of the then existing war, by act of December 7, 1863. Acts 10th Leg. p. 8; Pas. Dig. art. 3702. It will be seen that this act did not properly suspend the estray laws, but only modified them, and made them applicable for the time alone to “vicious” or “breachy” animals, so unruly as to be dangerous and unfit to run at large; and it further provided, that persons who had estrayed animals before the passage of this law might sell them.

The article (775 b, O. & W. Dig., penal code)...

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3 cases
  • Clark v. State
    • United States
    • Texas Supreme Court
    • January 31, 1869
    ...“during the war, and until six months after a treaty of peace shall be concluded.” Pas. Dig. arts. 3701, 3702. See the Estray cases, 28 Tex. 632, and 30 Tex. 515. The court judicially knows when the war ceased in Texas. The formal surrender of the belligerent force in this state took place ......
  • Nichols v. State
    • United States
    • Texas Supreme Court
    • October 31, 1867
  • State v. J. M. Spillers. the State
    • United States
    • Texas Supreme Court
    • October 31, 1867
    ...was, whether articles 3700 and 3702 of Paschal's Digest suspended article 2441 of the same. It had been decided in the Estray cases, 28 Tex. 632, that the criminal law was not suspended; but it is probable that these cases had not been called to the attention of the court; but had they been......

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