
    [No. 2360.]
    D. Reedy v. The State.
    Malicious Mischief—Evidekce.—The defense, in a prosecution for willfully and wantonly killing a cow, proposed evidence to show that the animals with which the cow was herded were breaehy animals, and in the habit of trespassing upon crops. Held, that the evidence should have been admitted, to be considered by the jury in determining whether or not the killing was willful and wanton, or whether it was done under circumstances sufficient to negative such motives.
    Opinion delivered November 13, 1886.
    Appeal from the County Court of Delta. Tried below before the Hon. D. H. Lane, County Judge.
    The conviction in this case was for the willful and wanton killing of a cow, and the penalty imposed by the jury was a fine • of twenty-five dollars.
    The appeal was prosecuted upon the single question determined in the opinion.
    
      Ed. H. Bennett, for the appellant.
    
      J. H. Burts, Assistant Attorney General, for the State.
   White, Presiding Judge.

Appellant, under Article 680 Penal Code, was indicted for willfully and wantonly killing a cow. On the trial it was proposed by defendant to show by the witness Wynn that the animals with which the cow that was killed ran were breachy animals and in the habit of trespassing upon crops. This evidence was excluded on objection by the State.

The ruling was erroneous. The evidence should have gone to the jury in order that they might have considered it in determining whether the killing was willfully and wantonly done without excuse and under circumstances evincing a lawless spirit, or whether under the circumstances such facts negatived such motives, promptings and wantonness. (Branch v. the State, 41 Texas, 622; Jones v. The State, 3 Texas Ct. App., 228; Lott v. The State, 9 Texas Ct. App., 206; Davis v. The State, 12 Texas Ct. App., 11; Thomas v. The State, 14 Texas Ct. App., 200; Lane v. The State, 16 Texas Ct. App., 172; Payne v. The State, 17 Texas Ct. App., 40.

For error in rejecting this evidence the judgment is reversed and the cause remanded.

Reversed and remanded.  