(after stating the facts.) This is an appeal from a judgment assessing a fine against a non-resident for herding, grazing, and permitting his cattle to run at large in the Northern District of Sharp County. ' The evidence was amply sufficient to support the judgment, and we see nothing in the charge .of the court prejudicial to the defendant, unless it be in the third instruction given by the court, which is set out in the statement of facts. That instruction told the jury that if the cattle of the defendant were being herded or grazed or permitted to run at large in this State, and he, while in Arkansas, procured, participated in or assented to the same,” then it would be the duty of the jury to convict him. The only doubt about this instruction is presented by the word “assented” therein. If the cattle of defendant, without being driven or induced by any act on his part, had come into this State, and were grazing here of their own accord, we do not think that the mere fact that he acquiesced or made no objection thereto would make out a case against him, under the statute. Beattie v. State, 73 Ark. 428.
But, taking all the instructions together, we are of the opinion that the word “assented” was used by the court in the sense of “consented,” In other words, we think that the meaning of this part of the instruction was that if the cattle of the defendant *249were being herded or permitted to run at large in the county named, and he consented thereto, he was guilty. This instruction told the jury in substance that if the cattle of the defendant were herded or permitted to run at large in the district in this State named in the indictment, with the knowledge and consent of the defendant, he was guilty, and this we think was in accordance with the law. Kirby’s Digest, § 7830; Smith v. State, 71 Ark. 478.
Opinion delivered May 21, 1905.
The evidence on the part of the State, if true, showed clearly that defendant was guilty, while, if the testimony of the defendant was believed, the jury could not have convicted him under any view» of the instructions given by the court. For this reason, while we think the word “assented” in the instruction was not the best word to use, we do not think it was prejudicial, under the evidence in this case. There were other objections raised, but on the whole case we are of the opinion that no prejudicial error was committed.
The judgment is therefore affirmed.