
    REEVES v. STATE.
    (No. 9908.)
    (Court of Criminal Appeals of Texas.
    March 10, 1926.)
    1. Animals <@=>45 — On complaint and information for wounding cow, based on statute not in effect, and not sufficient under other statutes, conviction for malicious mischief will bo reversed and prosecution dismissed (Pen. Code 1911, art. 1231, superseded by Vernon’s Ann. Pen. Code 1916, as amended article 1231; Pen. Code 1925, arts. 1372-1374).
    On complaint and information charging willfully and wantonly wounding cow, based on Pen. Code 1911, art. 1231, superseded by Vernon’s Ann. Pen. Code 1916, as amended article 1231, and not sufficient to charge offense under Penal Code 1925, arts. 1372-1374, conviction for malicious mischief will be reversed and prosecution dismissed.
    2. Animals <@=>45 — It is necessary to allege and prove killing or mutilating was needlessly done (Pen. Code 1925, art. 1374).
    In order to charge offense for killing or mutilating an animal under Pen. Code 1925, art. 1374, it is necessary to allege and prove that such killing and mutilating was needlessly done.
    Appeal from Henderson County Court; Grover H. Curlee, Judge.
    W. B. Reeves was convicted of malicious mischief, and he appeals.
    Reversed, and-prosecution ordered dismissed.
    See, also, 281 S. W. 551.
    Miller & Miller, of Athens, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   HAWKINS, J.

Conviction is for malicious mischief. The specific charge against appellant was that he did “willfully and wantonly wound one cow.” In the event of conviction, the court authorized a punishment by fine of not less than $5 nor more than $100.

The prosecution was under old article 787, which appears in the Penal Code, Revision of 1911, as article 1231, and carried the penalty authorized by the court’s instruction. In 1913, by chapter 88, the Thirty-Third Legislature passed a general law against cruelty to animals, which superseded the articles just referred to, and which appears in Vernon’s Ann. P. C. (1916), as amended article 1231, reading as follows:

“Every person who overdrives, willfully overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, unnecessarily or cruelly beats, or needlessly mutilates or kills, or carries in or upon any vehicle, or otherwise in a cruel or inhumane manner, or causes or procures to be done, or who having the charge or custody of any animal unnecessarily fails to provide it with proper food, drink or cruelly abandons it, shall, upon conviction, be punished by fine ■ of^not less than ten dollars nor more than two hundred and fifty dollars.”

It may readily be seen that essential changes were made and a different penalty prescribed. This was called to the attention of the learned trial judge by motion to quash the complaint and information, and also by an exception to the charge that it authorized a penalty not provided by statute, all of which were by the court overruled. The offenses relating to killing or injuring animals are brought forward in the 1925 revision of the Penal Code under articles 1372, 1373, and 1374. The first of these articles deal with the wounding or killing of an animal when upon cultivated land surrounded by an insufficient fence. Under the facts of the present case the prosecution seems to fall under this article, but there is no allegation to support the proof. Article 1373 denounces as a crime the killing or wounding of an animal when done “with intent to injure the owner.” No such allegation is found in the complaint and information in the present ease. In order to charge an offense for killing or mutilating an animal under article 1374 (formerly 1231, copied in this opinion), it is conceived necessary to allege and prove that such killing or mutilating was “needlessly” done. In the absence of such allegation, the present prosecution could not proceed under the last-named article.

The complaint and information being based upon a statute which was no longer in effect, and containing no averments bringing it within any of the articles last mentioned, it becomes the duty of this court to reverse the judgment, and order a dismissal of the prosecution under the present complaint and information, which is accordingly so ordered.  