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1. Malicious Mischief- Burden on State. The statutory offense in Texas is the will. ful or the wanton commission of the act imputed, and this essential constituent of the offense is not deducible from the mere commission of the act. The burden is on the State to prove such other facts or circumstances as suffice to satisfy the jury, beyond a reasonable doubt, that the inculpatory act was either wilfully or wantonly done by the defendant; and an instruction to this effect must be given to the jury.

2. Construction of "Willful" and "Wanton.” — Willful when used in a penal statute, means more than its import in common parlance. It means with evil intent or legal malice, or without reasonable ground to believe the act to be lawful. A wanton act is one committed in disregard of the rights of another, in a reckless spirit, or under circumstances which evince a lawless, wicked or mischievous intent.

3.

Defence of Property. - The owner of ewes upon a range were attacked by a num. ber of strange rams at a time when it was dangerous to get them with lambs. To drive them away being impossible, and their owners being unknown, he consulted his neighbors and was advised by them to kill the rams, and soon afterwards their carcasses were found near his camp. Held, that the jury should have been instructed that the killing of the rams was not willful or wanton within the meaning of the law, if done in the necessary protection of property of the slayer, after he had ineffectually used ordinary care to protect his property.

APPEAL from the County Court or Shackelford. Tried below before the Hon. J. L. FISHER, County Judge.

The facts are sufficiently disclosed in the opinion of this court. WILLSON, J. This conviction was had upon an information charging defendant with willfully and wantonly killing four head of sheep. The punishment assessed was a fine of eighty dollars.

[Omitting an irrelevant point.]

Defendant assigns as error a portion of the court's charge to the jury, which reads as follows: "You are charged that the killing must be proved before you can find the defendant guilty, and, in case the evidence is sufficient to establish the killing, then it developes upon him to show the facts or circumstances on which he relies to justify himself." This charge is erroneous, and was calculated to mislead the jury and prejudice the rights of the defendant. In order to constitute the killing of the sheep an offense under article 680 of the Penal Code, the act of killing must have been either willful or wanton. We presume the court, in giving this charge, considered that it was sanctioned by article 51 of the Penal Code, which declares that, "on the trial of any criminal action, when the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts or circum

stances on which he relies to excuse or justify the prohibited act or omission." If the charge had been that, if the jury believed from the evidence that the defendant did willfully or wantonly kill the sheep, then the offense was proved, and it devolved upon him to establish the facts or circumstances on which he relied to excuse or justify such killing, we might not consider it materially objectionable, though, in our opinion, it was not intended that article 51, above quoted, should be given in charge to the jury except in those exceptional cases where the burden of proof rests upon the defendant to establish his defence. Our views upon this question are fully explained in Jones v. State.1

But, conceding that it would not have been objectionable in this case to give in charge the rule stated, it should certainly have been given fully and fairly; and it can not be pretended that this was done. Under the charge as given, the killing of the sheep being proved, the offense was complete, and the prosecution could rest its case. Such is not the plain language of the law. By the law, the State must not only prove the act, but the intent, the willful or wanton spirit which accompanied its commission. This essential ingredient of the crime is not proved by the mere act of killing. There must be other facts or cir cumstances showing willfulness or wantonness on the part of the defendant; and the burden is upon the State to adduce such other facts and circumstances, and they must be sufficient to satisfy the jury be yond a reasonable doubt that the killing was either willful or wanton, This manifestly erroneous charge is not corrected by any other portion of the charge. A charge was asked by defendant, and refused by the court, which announced the correct principle, and which should have been given instead of the erroneous charge which we have discussed. This refused charge is as follows: "The bare fact of killing by defendant is not sufficient to establish a willful or wanton killing, but the burden of proof rests on the State to show beyond a reasonable doubt that it was willfully or wantonly done." 2

In the conclusion of the court's charge the jury are told that if there is a reasonable doubt in their minds as to the guilt or innocence of the defendant they must acquit. This obvious error is one of strangely frequent occurrence in judges' charges, and one which has been repeatedly pointed out and condemned by this court. It is not such an error, perhaps, as the defendant could complain of, because it is altogether favorable to him, and renders it impossible for the jury to convict him, provided they are governed by the charge. If they have a reasonable doubt of his guilt they must acquit him, and if they have a reasonable doubt of his innocence they must likewise acquit

▲ 13 Tex. Ct. App., 1.

2 Davis v. State, 12 Tex. (App.) 13.

him. Evidently, in this case, the jury rendered a verdict contrary, to this charge of the court, because they did not acquit the defendant, and surely they must have entertained a reasonable doubt of his innocence or they would not have convicted him.

Because of the error in the charge of the court herein first noticed, and the error in refusing to give the charge asked by the defendant, the judgment must be reversed and the cause remanded for a new trial; and in view of another trial, we deem it proper to notice other questions presented in the record.

We think it pretty clearly appears from the evidence that the defendant killed the sheep, but that he killed them in defence of his own sheep in the protection of his own property. He had a flock of sixteen hundred ewes herded upon the range in the month of July. These sheep charged to have been killed were "bucks," and got with his ewes, and were getting them with lambs. According to the evidence of experts in sheep raising, the lambs begotten at that season of the year would be born in the winter, and forty-nine out of every fifty of the ewes thus having lambs, would die. Defendant's flock of ewes were therefore in imminent danger of being utterly destroyed by the untimely ravages of these wandering "bucks." Defendant saw and understood the situation, and he, time and again, drove the bucks away from his ewes, but they, being ignorant, doubtless, or at least careless, of the fatal injury they were inflicting upon the ewes, would return to the flock as often as they were separated from it. Defendant made diligent inquiry to ascertain the owner of these roving bucks, but he could not be found. He then asked the advice of neighbors as to what he should do to protect his ewes, and was advised to kill the bucks; which advice he probably followed, for their dead bodies were soon afterwards found near the defendant's camp.

Now, under these circumstances, did the defendant commit a crime in killing the bucks? Did he kill them willfully or wantonly? Of course he killed them intentionally, but it is not every intentional act that is a willful or wanton act. When used in a penal statute the word "willful" means more than it does in common parlance. It means with evil intent, or legal malice, or without reasonable ground for believing the act to be lawful. In common parlance it is used in the sense of intentional, as distinguished from accidental or involuntary. To make the killing of the sheep, therefore, a willful act, it must have been committed with an evil intent, with legal malice, and without legal justification. To make the killing a wanton act, it must have been

1 State v. Preston, 34 Wis. 675; State v. Clark, 29 N. J. L. 96; Savage v. Tuller, Brayt. (Vt.) 223; 1 Abb. (U. S.) 196.

committed regardless of the rights of the owner of the sheep, in reckless sport, or under such circumstances as evinced a wicked or mischievous intent, and without excuse.1

The

In Branch v. State, in speaking of this offense it is said: act must be done intentionally and by design, and without excuse, and under existing circumstances evincing a lawless and destructive spirit." This case has been cited and approved in several subsequent decisions. In the case before us the principles announced in these decisions should be submitted in proper instructions for the consideration of the jury, and the jury should be instructed in the legal meaning of the terms "willful" and "wanton," as hereinbefore explained. If the defendant killed the sheep in the necessary protection of his own property, after using ordinary care to prevent the injury which was being inflicted upon it, it would not be a willful or wanton act within the meaning of article 680 of the Penal Code. It might be a trespass for which he would be answerable in a civil action for damages, but it would not be a crime.

The judgment is reversed and the cause is remanded.

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Intent-"Willful" Construed.- When used in a penal statute, the word "willful" means more than it does in common parlance. It means with "evil intent," or "legal malice," or "without reasonable ground for believing the act to be lawful." In common parlance it is used in the sense of intentional, as distinguished from an accidental or involuntary act. In order, then, to have made the killing of an animal willful, it must have been committed with evil intent, with legal malice and without legal justification. See the statement of this case for evidence held insufficient to disclose an evil intent on the part of the defendant.

APPEAL from the District Court of Llano. Tried below before the Hon. J. C. TOWNES.

The conviction of the appellant was for the willful killing of a horse,

1 Jones v. State, 3 Tex. (App.) 228. 2 41 Tex. 622.

3 Jones v. State, 3 Tex. (App.) 228; Lott v. State, 9 Tex. (App.) 206; Davis v. State, 12 Tex. (App.) 12.

the property of one J. A. Swanson. The complaint reads as follows:

"In the name and by the authority of the State of Texas:

"Before me, the undersigned authority, this day personally appeared J. A. Swanson, a credible citizen of Llano County, who, after first being by me duly sworn, upon oath, says that, upon information and belief, that one Sam. Lane, in the county of Llano and State of Texas, and on or about the sixth day of April, 1882, did then and there, willfully and knowingly kill one animal of the horse species, of the value of fifty dollars, the property of affiant, with intent upon the part of him, the said Sam. Lane, to injure the owner thereof, against the peace and dignity of the State.

"J. A. SWANSON. "Sworn to and subscribed before me this the eighth day of April,

1882.

"J. S. ATCHISON, J. P., "Precinct No. 1, Llano Co., Texas."

A fine of ten dollars was the punishment imposed.

William Rawls, the first witness for the State, testified that he was in the employ of the defendant in April, 1882, and was living at his house at the time that he is charged to have killed the horse. Some time between midnight and day, on the night the horse was killed, the witness was awakened by horses running around the house. A few minutes later, the witness heard the report of a gun. Presently the defendant came into the house and said that he had shot that horse; that he was sorry, but that he had to shoot him.

On cross-examination, the witness said that the horse shot by defendant was an iron gray stallion, about two years old. The horse had been in the neighborhood, when shot, some five or six days. Witness did not know to whom he belonged. He had been annoying and injuring defendant's mares before that night. He had been particularly troublesome to a certain mare with a young colt, that belonged to the defendant, and the defendant had made many inquiries as to who owned him. The witness did not know how long the horses had been running on the night of the shooting. He was awakened by the noise they made running around the house. The defendant came into the house after the shooting, and said that he had shot the stud; that he was sorry he had to do it, but that he could not help it, as the stud was running his mare and colt; that he had effectually tried to catch him, or to run him away. He said that he had to kill the stud to save his own property, as he was certain, if he did not, the stud would kill his colt. The defendant was a poor man, owning but two mares and colts, one of the colts being

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