seems requisite. people.

Defendant and the female witnesses were colored

K. W. Davis, for the State, testified that in the spring or summer of 1879 he lost a black horse worth $100. The horse was a bad fencebreaker; witness had to take him up several times on that account.

Mary Williams, for the State, testified that in June, 1879, she lived on the defendant's place, west of Big Creek. One evening she went to the creek for water, and while there heard the report of a gun. On her way back to the house, she saw the defendant, with a gun in his hand, driving a large, fine black horse out of the field. When defendant reached the fence he let it down and turned the horse out, which then crossed the path in front of witness, and she saw blood just streaming from a wound in its right shoulder. A day or two afterwards she saw the same horse, dead, at the creek. Witness had no hard feelings against defendant. On cross-examination the witness seems to have so adjusted the relative positions of the horse and herself that his left side was presented to her when she saw the blood streaming from his right shoulder. To the defendant's inquiry how she explained the matter, she made no reply. She showed that she knew her right hand from her left, and was then asked whether the horse was shot on the side at which a person gets upon a horse, or upon the opposite side; to which she replied that he was shot upon the side you get up on. She denied that she had stated at an examining trial that she saw no blood on the horse but saw blood on the fence and the grass. She also denied telling Reason Buchanan that the talk about defendant killing the horse was all a lie; that Mary Lacey was fixing upon him because she was mad at him for not marrying her. And she further denied that she told Buchanan that she made her own statement at the examining court because defendant had treated her badly by getting her with child, and by saying that she needed no pay to swear for him; and that she would show the defendant what she could do. The witness repeated that the defendant was the man who had the gun, and who drove the horse out of the field, and she saw no one else who could have done the shooting.

Mary Lacey, for the State, testified that she lived with the defendant in June, 1879. On the day before the horse was killed, the defendant loaded his gun with fifteen buckshot and said, "G—d d—n you, if you come in my field I'll fix you." The horse did not come in that evening. Next day he came in about twelve o'clock; defendant drove him out. He came in about the middle of the evening, and defendant drove him out again. Then he came in again about sunset, and the defendant took his gun and went out there; and directly the witness heard the gun fired.

When the defendant came back the witness asked him if he

had killed the horse, and he said he had not, but had fixed him so he would not get in his field any more. The next day witness saw the horse, dead, on the creek, with a hole in his right shoulder that a child could run its fist in. Witness did not tell anybody about it until after the defendant married Maria Phelps, and then she told it. The State closed.

The defence introduced three witnesses, who contradicted Mary William's denial of her former statements. One of them was Reason Buchanan, a freedman, who stated that Mary Lacy called him and told him to tell Mary Williams that the white folks had found out about the killing of that horse on Big Creek, and would send for her, and she must swear that Bill Davis (the defendant) did it. When witness got home he told Mary Williams what Mary Lacy had said, and asked her to tell him the truth. This was the next day after defendant married Maria Phelps. Mary Williams replied, that she knew nothing about the horse being killed, and that it was a lie Mary Lacy had fixed up on Bill Davis because he had been sleeping with her and promised to marry her, and had married Maria Phelps. After that talk between Mary Williams and witness, Mary Lacey asked him if he told Mary Williams what she had told witness to tell her; to which the witness replied that he had, and that Mary Williams denied it. Then Mary Lacey told witness to tell Mary Williams that when she was sent for she must say that Bill Davis shot the horse, and she (Mary Lacey) would back her in it. After witness heard Mary Williams make her statement at the examining trial, he asked her how she came to do so after telling him, witness, what she had told him. She replied that Bill Davis had treated her badly, had got a child by her, and had said she did not need any pay to swear for him, and she intended to show him what she could do. W. L. Davidson, for the appellant.

H. Chilton, Assitant Attorney-General, for the State.

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HURT, J. William Davis, the appellant, was convicted of wantonly killing a horse, the property of K. W. Davis. From the statement of facts it appears that the horse was a bad fence-breaker," and that his owner "had to take him up several times on that account." That, on the day before the horse was killed, defendant loaded the gun, and swore that, if the horse came in his field, "he would fix him." The horse did not come in that evening. That on next day, about twelve o'clock, he came in and defendant drove him out. He came in again about the middle of the afternoon, and was driven out again by defendant, and, entering again about sundown, defendant took his gun and went out towards the horse, and the report of a gun was heard.

These facts in regard to the loading of the gun, entering the field by the horse, and the conduct of defendant are found in the evidence of

Mary Lacey. The horse was found dead from a gun-shot wound, not far off, a few days after.

Do the above facts support a verdict of guilty of wantonly killing the horse? We think not. The legal principles directly applicable to this question are very clearly stated in the following cases: Branch v. State, Collier v. State, Lott v. State,3 Jones v. State.4

It is suggested in Branch v. State, that the principles enunciated in that opinion" would not apply to a case where the crop was not properly protect against trespass by stock." Whether the principles so clearly stated in that and other subsequent opinions are in conflict with this suggestion, we will not stop at this place to discuss. Every presumption being in favor of the defendant, proof that the crop was not properly protected should have been made by the State, in order to carry the burden and establish the guilt of defendant by showing that the killing was wantonly done.

The evidence not supporting the verdict, the judgment is reversed and the cause remanded.

In the Supreme Judicial Court of Massachusetts, 1872.

For a Conviction under the statute which provides for the punishment of any one "who willfully or maliciously injures" a building, it is not enough that the injury was willful and intentional, but it must have been done out of cruelty, hostility, or revenge.

Complaint to a trial justice under the statute of 1862,5 alleging that the defendant "unlawfully and maliciously, did deface, injure, and mar a certain building, to wit, Lovell's Hall, so-called, the property of Isaac Lovell, by defacing the floor of said building with filthy matter." At the trial on appeal in the Supreme Court before DEWEY, J., there was evidence "that there were notices in the hall forbidding any person to spit tobacco juice on the floor; that there were no spittoons in the hall; that the defendant said when told of objection to spitting on the

141 Tex. 622.

24 Tex. (App.) 12,

39 Tex. (App.) 206.

46 Tex. (App.) 178.

6 ch 160.

floor of the hall that he thonght one had a right to spit on the floor of a hall where there were no spittoons; that subsequent to this statement, during a theatrical entertainment in the hall, the defendant spat tobacco juice from five to ten times on the floor; that the same was thereby defaced; and that it required considerable labor to efface and remove the effects of tobacco juice."

The defendant asked the judge to rule that, for the jury to be satisfied that the defendant was guilty of a malicious act they must find that the injury was committed either out of a spirit of wanton cruelty or wicked revenge; but the judge declined so to rule, and ruled "that if the act was done accidentally, thoughtlessly, or carelessly, the defendant should not be found guilty; but if it were done willfully and intentionally, he having had his attention called to the matter, and the act was one whereby the building was defaced, marred, or injured, though the injury was slight, the jury would be authorized to convict." The jury returned a verdict of guilty, and the defendant alleged exceptions. A. A. Austin, for the defendant.

C. R. Train, Attorney-General, for the Commonwealth.

COLT, J. Malicious mischief or damage amounting to a crime is defined by Blackstone, to be an injury done, either out of a spirit of wanton cruelty, or black and diabolical revenge." This definition was approved and adopted in Commonwealth v. Walden. The defendant was there indicted for willfully and maliciously destroying the personal property of another, and it was held that the word maliciously, as used in the statutes relating to malicious mischief, was not sufficiently defined as the willful doing of any act prohibited by law, for which the defendant has no lawful excuse, but the jury must be satisfied that the injury was done out of a spirit of cruelty, hostility, or revenge. This element must exist in all those injuries to real or personal property done willfully or maliciously, which are enumerated and made criminal in the several statutes, among the more recent of which is the statute including the act charged in this indictment. The injury must not only be willful, that is intentional and by design, as distinguished from that which is thoughtless or accidental, but it must, in addition, be malicious in the sense above given. The willful doing of an unlawful act without excuse, which is ordinarily sufficient to establish criminal malice, is not alone sufficient under these statutes. The act, although intentional and unlawful, is nothing more than a civil injury, unless accompanied with that special malice which the words "willful and malicious" imply. The distinction was called to the attention of the court in the instructions which were asked, and it was omitted in those which were given. Exceptions sustained.

14 Bla. Com. 244.

2 3 Cush. 538, 541.

MALICIOUS MISCHIEF. - KILLING MUST BE WANTON.

BRANCH v. STATE.

[41 Tex. 622.]

In the Supreme Conrt of Texas, 1874.

1. To Constitute Malicious mischief under the statute, the killing or other act when inflicted on the dumb animal, must not only be willfully, but wantonly done, without excuse, and under circumstances evincing a lawless spirit.

2. The Killing of an Animal which was in the Habit of trespassing on one's crop during an act of trespass, not from wantonness, but to prevent destruction of crops, is not malicious mischief.

APPEAL from Smith. Tried below before the Hon. M. H. BONNER. George Clark, Attorney-General, for the State.

REEVES, Associate Justice. The indictment charges appellant and John Lawler with killing a hog belonging to John Wilson, and avers that it was done unlawfully, willfully and wantonly, and appellant being convicted and fined five dollars, he prosecutes this appeal.

The indictment was found under the statute punishing malicious mischief, and which provides in article 2345: "If any person shall willfully and wantonly kill, maim, wound, poison, or cruelly and unmercifully beat and abuse any dumb animal, such as is enumerated in the preceding article, he shall be fined not exceeding two hundred and fifty dollars.

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The preceding article provides: "If any person shall willfully kill,” etc, any of the animals enumerated, including swine, with intent to injure the owner thereof, he shall be fined," etc.

It is not necessary to notice all the grounds of the motion for a new trial, nor to examine with much particularity the motion in arrest of judgment. The indictment is sufficient in form, and the judgment recites that the jury, after being impaneled and duly sworn, returned into court their verdict, assessing à fine of five dollars, setting out the verdict in usual form. There is doubtless some inaccuracies in the dates as found in the transcript. The clerk's indorsement recites that the indictment was filed December 5, 1872, when it is stated that the bill was returned into court December 5, 1873. One of the witnesses says that the animal in question was shot about September, 1874; and it appears from the record that the trial took place at that time. These are probably clerical mistakes and do not require further examination. One