
    BURANDT v. STATE.
    (No. 7825.)
    (Court of Criminal Appeals of Texas.
    April 30, 1924.)
    Criminal law <&wkey;804(l) — Oral charge permissible, in prosecution for misdemeanor only when consent is given.
    In prosecution for maliciously poisoning dog, where defendant requested a written charge, court was privileged to read any appropriate written charges requested by defendant, and supplement them by written charge expressing its view; but under Vernon’s A,nn. Code Cr. Proc. 1016, art. 740, it was not privileged to give verbal charge, such a charge being permissible only when consent is given.
    <®=3Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Gregg County Court; Wmv R. Hughes, Judge.
    Mrs. Johnnie Burandt was convicted of unlawfully killing a dog, and she appeals.
    Reversed and remanded.
    R. S. Wyche and Lacy & Bramlette, all of Longview, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is the unlawful killing of a dog; punishment fixed at a fine of $75.

The appellant was charged by an indictment containing four counts,- namely: First, that she maliciously (poisoned a dog with the intent to injure the owner, Rush Moore;' second, that she unlawfully, willfully, and needlessly killed a dog; third, that she unlawfully, willfully, unnecessarily, and cruelly tortured and killed a dog by means of poisoning; fourth, that she unlawfully, willfully, and wantonly poisoned a dog.

The prosecution seems to be based upon article 1230 of the Penal Code and article 1231 as amended by Acts 30th Leg. c. 59, § 1 (Vernon’s Ann. Pen’. Code Supp. 1922, art. 1231). The punishment prescribed under article 1230, supra, is by a fine of not less than $10 nor more than $200, and that prescribed by article 1231 is by a fine of not more than $200.

The evidence is wholly circumstantial, and a recital of it is deemed unnecessary.

The appellant requested the court to give a written instruction. The court declined to do so, but informed counsel that, if special charges which were deemed appropriate were presented, they would he given. Appellant presented' one special charge to the effect that to warrant a conviction the evidence must show that the appellant willfully poisoned the dog of Rush Moore with the intent to injure the said Rush Moore. The court gave thiá charge, and supplemented it with a verbal charge embracing an instruction upon each count in the indictment, and informing the jury that, upon conviction, the punishment should be assessed at not less than $10 nor more than $200. According to the exception in the record, the court gave a verbal charge embracing various other matters, including circumstantial evidence. In article 740 of C. C. P. it is said;

“No verbal charge shall be given in any case whatever, except in cases of misdemeanor, and then only by consent of the parties.”

In the present case, it is our conception of the statute that, the appellant having requested that the court charge the jury in writing, it was the privilege of the court to read to the jury any appropriate written charges requested by the appellant, and to supplement these by a written charge expressing the views of the court of the law applicable to the issues involved, but it was not his privilege to give a verbal charge. Such a charge is permissible only when consent is given. In the present case there can be no presumption of consent because the contrary affirmatively appears. See authorities collated in Vernon’s Tex. Crim. Stat. vol. 2, p. 500. If, upon another trial, the court should charge the jury, he should inform them of the penalties in accord with the statute. See Thompson v. State, 91 Tex. Cr. R. 235, 237 S. W. 926.

Because of the error pointed out, the judgr ment is reversed and the cause remanded.  