
    MILLER v. STATE.
    (No. 3301.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    Animals (§ 45) — Malicious Poisoning — Evidence.
    In a prosecution for willfully and maliciously poisoning a chicken with intent to injure the owner, evidence held insufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 123-140, 191, 192; Dec. Dig. § 45.]
    Appeal from Delta County Court; J. N. Viles, Judge.
    J. C. Miller was convicted of willfully and maliciously poisoning a chicken with intent to injure' the owner, and ’ he appeals.
    Reversed and remanded.
    
      Newman Phillips, of Cooper, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was charged with willfully and maliciously poisoning a chicken with intent to injure the owner.

There is no evidence that the chicken died from being poisoned. Appellant and Mr. J. W. White were neighbors. Mr. White had his yard inclosed with chicken wire, but he says his chickens sometimes got out by reason of the gates being left open. The evidence further shows that appellant placed rat poison in his yard, as he says, to kill rats. There is no evidence that the gates of Mr. White were left open, and that his chickens got out, after appellant placed the rat poison in his yard, until the time of the death of the two chickens. No one says the two chickens died from poison. The only evidence is that they were apparently healthy chickens, and one morning were found dead in the chicken house. No examination was made to see what occasioned their death, so far as this record discloses. No one saw the chickens in appellant’s yard after the poison had been placed out in his yard by him. There is a total lack of evidence, except surmise, that the chickens died from poison, and no evidence, if they did, that they were in appellant’s yard after the poison had been placed there by him, as he says, to kill rats.

The evidence wholly failing to sustain the verdict, we do not deem it necessary to discuss the other questions.

The judgment is reversed, and the cause remanded.  