Appellants were convicted upon an information which charged them with unlawfully, wilfully and knowingly causing a large number of cattle, to wit, fifteen head, to go within the inclosed lands of G. W. Kinard, without his consent, etc.; which information is based upon article 684 of the Penal Code.

It is shown by the evidence that the cattle were turned into a field or inclosure of three hundred and fifty acres, inclosed by a single fence. This tract of three hundred and fifty acres was not all owned by Kinard, but was the property of several joint owners, as follows: Kinard, the prosecutor, owned an undivided four-sevenths; a Mrs. Rhodes two-sevenths, and a minor named Clark owned the remaining one-seventh. One hundred and fifty acres of the tract were in pasture, and the remaining two hundred acres, for convenience of cultivation, were divided into lots, and annually cultivated by the owners or their tenants. In the year 1884, Kinard leased his portion; Mrs. Rhodes’s interest was cultivated by a Mr. Rhodes, her brother-in-law and agent; and the interest of the minor Clark was cultivated by a tenant named Wyche.

After the crops had all been gathered, the prosecutor, Kinard, and *371Wyche, the tenant of the Clark minor, agreed that they had the right to turn so many head of cattle into the inclosure, estimating the number in proportion to the acreage owned or cultivated by them; that is, Wyche was to put in nineteen head, and Kinard thirty bead; and, in accordance with said agreement, these parties turned their cattle into said inclosure. Rhodes, who was the agent and tenant of Mrs. Rhodes’s interest, was not a party to this agreement, nor is it shown that he turned any of his own or Mrs. Rhodes’s cattle into the inclosure. After the other parties, however, had turned their cattle in as per the agreement, Rhodes expressly authorized these appellants to turn in the fifteen head of cattle complained of in this prosecution. These are the facts in brief.

Under such a state of facts it does seem to us that it requires no searching after technical or abstract principles of law to settle this case according to right, justice and reason,— not to say common sense.

If the other parties, independent of legal principles, agreed that they, as owners, could turn in any number of cattle in proportion to their interest, they certainly could not have complained if Mrs. Rhodes should have asserted her right to the same extent; and if Mrs. Rhodes had the right, her agent, acting for her, would have the same right; and if he had the right as to his or her cattle, he could clearly delegate this right to a third party, and under such authority such third party would no more be a trespasser than would Mrs. Rhodes herself or her agent have been.

As was stated in Cleaveland v. The State, 8 Texas Ct. App., 44, the obvious purpose and intention of article 684, Penal Code, was, as expressed in the title of the original act from which it was taken, “ to better provide for the protection of agricultural interests,” and to provide a penal remedy “for that character of trespass, in addition to a civil action for damages, which for obvious reasons might often prove inadequate. The mischief designed to be remedied was the wanton or reckless depredations upon crops by stock, caused frequently by irresponsible parties who were not able to respond in damages, and to prevent the loss in a few hours of the fruits of a year’s labor.”

We do not controvert or deny the general legal principles announced in Cleaveland’s case. They are undoubtedly correct when they are applied to a state of facts to which they are applicable; but they cannot be made to apply to the facts of this case, as shown above. It would be most inequitable and unjust to hold that Kinard’s separate parcel of this land should be treated as sacred as if it *372were his separately inclosed land, when he was at the time treating the Rhodes interest as common property. The question is: Were appellants trespassers? If not, then they are not guilty of a violation of the law. They cannot be considered as trespassers if Rhodes could confer authority upon them to do what they did. That he had authority equal to Kinard or Wyche cannot be denied. If he had such authority, then, if these parties are guilty, Kinard and Wyche are equally guilty, and have no right to complain.

The case of Coggins v. The State is very similar to this in principle. (See 12 Texas Ct. App., 109.) 'There was no contract previously existing between the parties, or any of them, that cattle should not be turned into and grazed upon the land. The very opposite was the fact as to the agreement between Kinard and Wyche.

Under the peculiar facts of this case we cannot believe that appellants are guilty of any offense; wherefore the judgment is reversed and the case is remanded.

Reversed and remanded.

[Opinion delivered June 6, 1885.]