Appeal from the County Court of Guadalupe. Tried below before the Hon. J. F. McKee, County Judge.

The conviction in this case was for wilfully driving stock upon the enclosed land of another, and the penalty imposed was a fine of ten dollars.

Dick Griffin was the first witness for the State. He testified that he owned a small tract of land adjoining Chailotte Herran’s land on the south, and defendant owned a small tract adjoining Charlotte Herran’s on the north. Some time prior to January, 1885, defendant came to witness and proposed that if the witness would not turn his stock into his, witness’s, field until he, defendant, had gathered his crop, Ue, defendant, would not turn his stock into his field until he, witness, had gathered his crop. That agreement was then entered into. There was a division fence between the land of witness and that of Charlotte Herran, but no fence between the land of Charlotte Herran and that of the defendant. The fence between witness’s and Charlotte Her-ran’s lands was in a very dilapidated condition, being in some places scarcely knee high. That fence was built by Charlotte Herran, but was claimed by witness. Defendant’s farm was about a half a mile distant from witness’s farm. Witness could see defendant’s house from his. Witness saw the defendant, in August, turn his horses into his (defendant’s) field. Witness caught the horses, took them to defendant, and told him to tie them up; that they had crossed the fence into witness’s field, and that some hogs had invaded his potato patch. Circus day in Seguin was August 10. The witness gathered his corn about three weeks before the circus.

Cross-examined, the witness testified that the agreement with defendant was made in the presence and hearing of Soote 'Hall. ¡Nothing was said in the agreement about the time the crops should be gathered. Witness was gathering corn for Mr. Anderson when defendant gathered his corn. Defendant drove his horses into his own field, whence they passed over the dilapidated fence into witness’s field.

Soote Hall testified, for the State, that he lived with Dick Griffin. He saw the defendant turn his horses into his (defendant’s) field, in August, 1885, whence they passed into Griffin’s field, over a dilapidated fence. Witness did not hear the agreement between defendant and Griffin, testified to by Griffin. Griffin owned no horses or other stock.

Dick Sheffield testified, for the State, that he saw the defendant turn his horses into his field in August, 1885, whence they passed over a bad fence into Griffin’s field. The State rested.

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