but a few weeks old. It was this colt and its mother that the stud persistently ran. The defendant plowed this mare all day on the day preceding the night of the shooting. She was so lame on the day after the shooting that she was unable to work. Defendant owned no work animals other than the two mares. This mare, the mother of the young colt, was bruised up and stiff on the morning after the shooting. She had a fresh cut on her hind leg, which looked like it had been inflicted by the hoof of a horse. The colt was also bruised and stiff on the morning after the shooting. Neither the mare nor the colt was hurt, bruised or stiff, but were perfectly sound, when turned out on the evening before. The defendant had no pasture, and always turned his stock outside to graze at night. Re-examined, the witness stated that he was a witness on the trial of this case in the justice's court. He left Llano County shortly after that trial, and was brought back, under attachment, to testify as a State's witness on this trial. J. A. Swanson, the next witness for the State, testified that on or about the eighth day of April, 1882, he heard of the killing of one of his horses, and went to look for him. He found the dead body of the horse about two hundred and fifty yards from defendant's house. The horse had a hole in his side, which the witness took to be a gunshot hole. He saw where the horse had been dragged on the ground, and he and his brother, who was with him, followed this trail back to a point about forty or fifty yards from defendant's house, where blood on the ground showed that the horse had died. The defendant came up to the body of the horse, where the witness and his brother were, and asked him what he was going to do about the killing of the horse. Defendant replied that he was going to do nothing. The witness was of the opinion that the defendant did not deny that he killed the horse, but would give the witness no satisfaction about it. The horse killed was an iron gray stud, two years old, the property of the witness, and was worth fifty dollars. He ran with the witness' horses, and had never been troublesome, but, on the contrary, was gentle. A short time before he was killed, the witness had him thrown down for the purpose of castration, but found that he had not dropped his stones, for which reason witness postponed castration. A short time after this, witness missed him from his range and bunch of horses, and saw no more of him until he found him dead, four or five days later. Witness, on one occasion, saw this stud in a field with Brown May's mare, but he took no notice of the proximity of the mare. This horse had never been vicious. Witness and defendant lived two miles apart, and witness' land ran behind that of defendant. Cross-examined, the witness stated that his brother, William Swan son, was with him when he found the dead body of his horse. The defendant did not deny the killing of the horse, and, when asked what he intended doing about, merely replied: "Nothing." Witness had no intimate acquaintance with defendant, but had seen him several times, and knew him when he saw him. He had never had any business transactions with defendant; had had no hard or ill feelings toward him, and knew of no hard or ill feelings against himself entertained by the defendant. If defendant had such feelings, he had no just cause for them. Their incidental relations had always been pleasant and friendly. Witness did not know the character or disposition of the horse when off his accustomed range, or away from his usual bunch of horses. He was off his accustomed range a short distance when killed. The State closed. Mrs. David Thompson testified, for the defence, that she knew defendant, and lived within a quarter of a mile of him at the time of the killing of the Swanson horse. On the night of the killing, witness heard a gun fire, and presently heard horses running by her house, as though something or somebody was after them. W. T. Swanson testified, for the defence, that he was a brother of J. A. Swanson, the owner of the horse that was killed. He had but little acquaintance with the defendant, and had never had a business transaction with him. He had never had a difficulty with the defendant; no hard feelings had ever existed between them, and he knew of no difficulty or hard feelings between defendant and J. A. Swanson. Witness was with his brother when the dead body of the horse was found, and with his brother he followed the drag or trail to where the horse died. The defendant denied that he killed the horse. William Casey testified, for the defence, that the reputation of the defendant in the community where he lived was that of a good, hard working, industrious, law-abiding man. Witness remembered no one but himself who had discussed these characteristics of the defendant, and he had done so only since the institution of this prosecution. The motion for new trial raised the questions discussed in the opinion. No brief for the appellant. J. H. Burts, Assistant Attorney-General, for the State. WHITE, Presiding Judge. This prosecution, which was for the malicious killing of a horse, under provisions of article 679 of the Penal Code, was originally commenced in a justice's court, and from thence appealed to the County Court, where a second conviction was had, from which this appeal is taken. A motion was made to quash the complaint, but in our opinion it sufficiently charges the offense, and the court did not err in overruling the motion. An application for continuance made by defendant and overruled by the court was, upon exceptions saved at the time, claimed to be erroneous, and is also assigned as error. Considered in the light of the evidence adduced on the trial, the evidence sought from the absent witnesses was perhaps material, but no sufficient diligence to obtain the testimony is disclosed in the application. Amongst other things, the court charged the jury that "the intent to injure the owner is the gist of this offense, but such intent may be presumed from the fact of killing." And again: "If you find that defendant killed the horse mentioned in the complaint, you may from that fact presume that such killing was done with intent to injure the owner, if from all the facts and circumstances of the case it is in your judgment proper for you to do so." 1 Under the law as it formerly was, the intent to injure could not be presumed from the mere fact of killing. Since that decision, however, the law has been changed in that regard, and it is now expressly provided in the statute 2 which defines the offense that in prosecutions under this article the intent to injure may be presumed from the perpetration of the act." This provision annexed to the statute, we think, makes it obvious that the Legislature intended to make the presumption of intention dependent upon and inferable alone from the proof of the perpetration of the act, and doubtless, also, further intended to make this offense an exception to the general rule with regard to presumptions of law from acts done, in so far as the same are permitted to be given in charge by the court to the jury.3 We do not think the court erred in the charges we have quoted above. As before stated, this prosecution is for "willfully "killing the horse, and is brought under article 679, which statute is essentially different from article 680, under which the cases of Davis v. State and Thomas v. State, were prosecuted. In those cases the prosecutions were for "wantonly" killing the animals alleged to have been killed. A mature consideration of the facts in this case has, however, led us to the conclusion that the evidence does not sustain the conviction. According to our reading and understanding of it, appellant killed the horse, which was a vicious animal, because, as was stated by the wit. ness for the State, he was compelled to do so to protect his own property. He also stated at the time that he was sorry that he had to do it. Was this a "willful" killing in contemplation of law? In Thomas v. State, it is said: "When used in a penal statute, the word 'willful' means more than it does in common parlance. It means with evil in 6 1 Newton v. State, 3 Tex. (App.) 245. 2 Penal Code, art. 679. 3 Jones v. State, 13 Tex. (App.) 1. 4 12 Tex. (App.) 11. 14 Tex. (App.) 200. tent, or legal malice, or without reasonable ground for believing the act to be lawful (citing authorities). 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." We do not believe the evidence, as exhibited in the record before us, sufficiently shows such evil intent as would make the killing a willful one in contemplation of law, wherefore the judgment is reversed and the cause remanded for a new trial. Reversed and remanded. MALICIOUS MISCHIEF-TITLE TO PROPERTY. BEHRENS v. STATE. [14 Tex. (App.) 121.] In the Court of Appeals of Texas, 1883. 1. Malicious Mischief-Title to Land. In a trial for malicious mischief alleged to have been committed by pulling down a fence, the trial court charged the jury that "the title to the land is not a question for your consideration, only so far as to show to whom belongs the rightful possession of the fence." Held, error, because inapplicable to any possible state of facts, and having been excepted to, notwithstanding the record brings up no statement of facts, this court has no alternative but to reverse the judgment of conviction. 2. Same-Possession. — In a trial for malicious mischief by pulling down a fence, the inquiry in regard to possession should be confined to the actual, quiet and peaceable possession, and not to extend to the rightful possession of the fence. APPEAL from the County Court of Williamson. Tried below before the Hon. G. W. GLASSCOCK, County Judge. The information in this case was joint against the appellant and Henry and Harn Behrens, charging them with pulling down the fence of William Ilso, in Williamson County, Texas, on the sixth day of May, 1882. The appellant being alone upon trial was convicted, and fined ten dollars and costs. The record brings up no statement of facts. Makemson & Price, for the appellant. J. H. Burts, Assistant Attorney-General, for the State. HURT, J. Appellant was convicted for pulling down, breaking and injuring the fence of William Ilse. In instructing the jury upon the subject of the possession of the fence, the court below gave this charge: "The title to the land is not a question for your consideration, only so far as to show to whom belongs. the rightful possession of the fence." To this charge the defendant excepted. There being no statement of facts, can this court, conceding the charge to be erroneous, reverse the judgment because of said error? If the charge is inapplicable to any state of facts being excepted to at the time, we are left no alternative but to reverse.1 Could there be a state of facts to which this charge would apply as the law governing the same? We think not. The rule upon this subject is stated in Johnson v. State.2 It is as follows: "The inquiry in regard to the possession should be confined to the question of the actual, quiet and peaceable possession, and not the rightful possession of the fence." Whilst it is true that the evidence of Henry Behrens, a co-defendant, was relevant and apparently very material, and also true that it could not be used on the trial, he being charged with the same offense, still we can not say the court erred in refusing a new trial, he having been subsequently acquitted, and there being no statement of facts. For the error in the charge, the judgment is reversed and the cause remanded. 1. D. was Indicted for Wantonly Killing a Horse. It was proved that the horse was a bad fence-breaker, and there was evidence that it was shot to prevent the destruction of D.'s crop. Held, that in the absence of proof that D.'s crop was not properly protected against live stock, D. could not be convicted. APPEAL from the Circuit Court of Fort Bend. Appellant was charged by information with wantonly killing a horse, the property of K. W. Davis, in June, 1879. The jury found him guilty, and assessed his punishment at a fine of $100. A clear and compendious statement of the case is given in the opinion of this court. From the standpoint of the defence, however, the evidence in detail 1 Code Crim. Proc., art. 685. 27 Tex. (App.) 146. |