
    Tom Jones v. The State.
    Malicious Mischief. —In a trial for the wilful and wanton killing of a dumb animal, the trial court instructed the jury to convict the accused if they believed that he “ unlawfully ” killed the animal. Held, error, because the killing might have been unlawful, but not wilful and wahton.
    Appeal from the County Court of Frio. Tried below before the Hon. L. S. White, County Judge.
    No brief for the appellant.
    
      Thomas Ball, Assistant Attorney-General, for the State.
   Clark, J.

The statement of facts, as set out in the record before us, is not authenticated by the signature of the judge, and must therefore be discarded from further consideration. The indictment sufficiently charges the offence of wilfully and wantonly killing a dumb animal, but an inspection of the charge of the court reveals a fundamental error. The jury were instructed that if they believed that the defendant unlawfully killed the animal as charged, they should convict. The killing might have been unlawful, and yet not wilful and wanton, as required by the law and charged in the indictment.

The court evidently framed its charge upon art. 2344, Paschal’s Digest, which makes it an offence to kill a dumb animal with intent to injure the owner. The prosecution was based upon art. 2345, which was designed solely for the protection of the animal, and prescribes a penalty different from that denounced in the preceding article. The two statutes should not have been confounded.

The judgment is reversed and the cause remanded.

Reversed and remanded.  