115 S.W. 597 | Tex. Crim. App. | 1909
Appellant appeals from a conviction on a charge of malicious mischief, in shooting a certain dog, had in the County Court at Law in Dallas County.
The evidence briefly shows that appellant owned a considerable place in the northern part of Dallas County; and on the place he had a certain sheep-pasture, fenced in with net and barbed wire, some fifty inches high, in which he kept his sheep. That he had posted this place; and had besides given personal notice to some, if not all, his neighbors, that hunting would not be allowed therein. On the trial one witness was permitted to testify to a statement made by appellant in February before the commission of the alleged offense in the following December, that if any dogs got in his pasture he would kill them, and that night his dog was killed. There is nothing to connect the appellant with the killing of the dog except the inference from his statement. We think that, as presented, this testimony was not admissible. This was an extraneous matter, wholly unrelated to this case, and not shown by the evidence to have any connection with it, or that this dog was even killed by appellant.
Again, on the trial appellant proposed to prove that the presence of dogs among sheep at the time in question would have frightened the sheep and caused the ewes, which were heavy with lambs, at that time of the year, to have lost their lambs, and that it was dangerous to his sheep for dogs to be in his pasture and with the sheep at that time, and that he knew this from his experience with sheep and from the condition of the ewes at the time. It was urged that this testimony was admissible for the purpose of rebutting *166
the charge of malice and willfulness and wantonness charged in the affidavit against defendant in shooting said dog, and would have tended to show that if defendant did shoot said dog in his said pasture, that it was done in the protection of his property and was not done either wilfully, maliciously or wantonly. This testimony was rejected. Under the case of Thomas v. State, 14 Texas Crim. App., 200, there would seem to be no doubt that this evidence should have been received. In that case, speaking for the court, Judge Willson says: "Now, under these circumstances, did the defendant commit a crime in killing the bucks? Did he kill them wilfully or wantonly? Of course, he killed them intentionally, but it is not every intentional act that is a wilful or wanton act. When used in a penal statute the word `wilful' 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. (The State v. Preston,
For the errors pointed out the judgment is reversed and the cause is remanded.
Reversed and remanded. *167
