
    CHOATE v. STATE.
    (No. 5812.)
    (Court of Criminal Appeals of Texas.
    May 12, 1920.)
    1. Animals <&wkey;45 — Separate offenses defined by statute relating to killing of stock.
    The provisions of Pen. Code 1911, arts. 1230, 1231, and 1246, relating to killing of animals, define separate offenses, each containing elements distinct from the other.
    2. Animals-&wkey;>45 — -Intent to- injure owner of hog killed held not inferable from mere fact of injury.
    If one who willfully kills an animal with intent to injure its owner may be convicted under Pen. Code 1911, art. 1230, although at the time the animal was killed it was on defendant’s premises, inclosed with an insufficient fence, such conviction can be sustained only upon proof of intent to injure the owner, and such intent cannot be inferred from the mere fact of injury; the inference being that the animal waá killed in defense of the property upon which it was trespassing.
    3. Animals &wkey;>45 — Trespass held justification for killing animal.
    In a prosecution for killing a hog, where one count, under Pen. Code 1911, art. 1230, charged killing with intent to injure the owner, and the other, under article 1231, charged willful and needless killing, defendant may justify 'on the ground that the hog was trespassing in his field, regardless of the fact that the field was insufficiently fenced, the information not charging the offense of killing an animal trespassing on land inclosed by an insufficient fence denounced by article 1246, and the court’s failure to present the defense raised by requested charges and objections to evidence is error.
    Appeal from Lamar County Court; W. L. Hutchison, Judge.
    Charley Choate was convicted of malicious mischief, and he appeals.
    Reversed and remanded.
    Tom L. Beauchamp, of Paris, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was convict-

ed of malicious mischief, the _ information containing two counts; one charging that he willfully killed a swine belonging to R. T. Sikes, with intent to injure the owner thereof, the other charging that he killed a swine willfully and needlessly.

The first count is under article 1230, P. G., which is designed to protect the owner, and the second count is under article 1231, designed to protect the animals. The 'aS-pellant’s contention is that in order for the conviction to stand the prosecution should have been under article 1246, which makes unlawful the killing of an animal which is trespassing upon the land inclosed by an insufficient fence. Each of these statutes defines a separate offense, and, while they all relate to the killing of stock, each contains elements distinct from the other. See Payne v. State, 17 Tex. App. 40; Brewer v. State, 28 Tex. App. 565, 13 S. W. 1004; Porter v. State, 48 Tex. Cr. R. 125, 86 S. W. 767; Hobbs v. State, 75 Tex. Cr. R. 337, 170 S. W. 1100; Branch v. State, 41 Tex. 624; Benson v. State, 1 Tex. App. 6; Rose v. State, 1 Tex. App. 400; Irvin v. State, 7 Tex. App. 78; Turnam v. State, 4 Tex. App. 586; McRay v. State, 18 Tex. App. 331.

It may be that one who willfully kills an animal with the intent to injure its owner might be convicted under article 1230, although at the time the animal was killed it was on the premises of the accused, inclosed with an insufficient fence. Cryer v. State, 36 Tex. Cr. R. 622; 37 S. W. 753, 38 S. W. 203. Such conviction could be sustained only upon proof that the intent was to injure the owner of the animal. Such intent could not be inferred from the injury for the reason that the inference that the animal was killed in the protection of his property, upon which the animal was trespassing, would be drawn unless the contrary appeared. See Thomas v. State, 14 Tex. App. 200; Caldwell v. State, 55 Tex. Cr. R. 164, 115 S. W. 597, 131 Am. St. Rep. 809 ; Hobbs v. State, 75 Tex. Cr. R. 337, 170 S. W. 1100.

It was shown without controversy that the appellant shot and killed a hog belonging to Sikes, and that at the time the hog was killed it was in the inclosed field of the appellant, in which there were planted peanuts. The evidence shows that Sikes had a numberl of hogs running at large in the neighborhood, and the appellant testified that they were frequently in his field; that he had driven them out several times, and talked to Sikes about them, and helped Sikes upon several occasions to pen them, and offered to help him build a place to put his hogs; that he had no animosity against Sikes, and did not kill the hog to injure him. It is contended by the appellant that the prosecution should have been under article 1246 of the Penal Code, which declares that any owner of cleared and cultivated land surrounded with an insufficient fence, who shall with firearms kill any hogs of another within such inclosure, shall be fined. Appellant álso insists that the facts did not bring the offense within article 1230, supra, and that to hold him guilty under the evidence a charge under article 1246, supra, was essential.

The evidence in the instant case does not justify the presumption that the animal was killed to injure the owner, nor is it conclusive that the a'ct was willfully done within the meaning of article 1230, nor wantonly done within the meaning of article 1231. The trial proceeded upon the theory that the presumption of intent to injure did obtain from the killing, and that the contention that it was not willfully or wantonly done was not met by proof that the killing was done for the protection of the appellant’s property; the theory of the trial court apparently being that appellant could not defend upon the ground that he killed the animal to protect his property, when it appeared that the killing took place on his premises, protected by an insufficient fence. This theory would bring the prosecution within article 1246, the elements of which were not charged. It has been suggested by this court through Judge Hurt in the case of Oryer v. State, supra, that the several phases of the evidence which may arise under this prosecution.be anticipated by separate counts. If this suggestion had been followed in the instant ^ase, and a count charging the elements of article 1246 included, there might be no error, but in the absence of such count in the information it was the appellant’s right to defend against the prosecution by showing that he shot the animal in the protection of his property, notwithstanding the fence inclosing it was insufficient. By requested charges arid objections to the evidence he sought to assert this right, and' the failure of the trial court to accord it was error requiring reversal. Hobbs v. State, 75 Tex. Or. R. 337, 170 S. W. 1100.

For the error pointed out the judgment is reversed, and the cause remanded. 
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