
    J. Reid v. The State.
    Malicious Mischief—Yaisiance.— Indictment charged that the defendant did “wound and kill ” a certain mule. The proof showed that the mule, though .wounded, was not killed. Held, a fatal variance between the allegation and the proof.
    Appeal from the County Court of Ellis. Tried below before the Hon. A. Langley, County Judge.
    The opinion discloses the case.
    
      Anderson Bros., for the appellant.
    
      Thomas Ball, Assistant Attorney-General, for the State.
   White, P. J.

This prosecution was by indictment for malicious mischief, and was based upon art. 680 of the Penal Code. As set forth in the indictment, it is charged that defendant “ unlawfully, wilfully, and wantonly did then and there wound and kill a certain mule, the same being then and there a dumb animal,” etc. On the trial, the two State’s witnesses testified that “ the mule [which was shot] is still living and doing work every day.” This evidence did not support the indictment in its most material allegatian, but directly contradicted and disproved it. The prosecution failed to make out the case preferred against defendant, and the judgment must be reversed and the cause remanded.

Reversed and remanded.  