
    Walter Huffman v. The State.
    No. 3720.
    Decided May 13, 1908.
    Malicious Mischief—Killing Cattle—Intent to Injure—Charge of Court.
    Where upon trial for maliciously-killing cattle with intent to injure the owner, the evidence showed that the cattle were fence-breakers; that appellant had a good fence, and that he shot the cattle to protect his crop, the court erred in not submitting this defense. Following Lane v. State, 16 Texas Grim. App., 172 and other cases.
    Appeal from the County Court of Mills. Tried below before the Hon. L. E. Patterson.
    Appeal from a conviction of maliciously and willfully killing cattle to injure the owner; penalty, a fine of $10.
    The opinion states the case.
    
      B. L. H. Williams, for appellant.—On question of intent, cases cited in the opinion.
    
      F. J. McGord, Assistant Attorney-General, for the State.
   BEOOK.S, Judge.

Appellant was convicted for unlawfully, willfully and maliciously killing two and wounding six head of cattle with intent to injure D. H. Trent, the alleged owner of said cattle, and his punishment assessed at a fine of $10.

Appellant asked the court to give the following special charge: “Gentlemen of the jury: Ton are instructed that if in this case you believe from the evidence, beyond a reasonable doubt, that defendant did wound and kill the cattle described in the indictment, yet if you find and believe from the evidence that he did so wound and kill same in the defense of his property or to protect his crop, then, in that event, you will acquit the defendant.” The evidence in this case shows that the cattle were fence breakers; that appellant had a good fence; that he shot the cattle to protect his crop. Under this state of facts the court should have given the special charge copied above. See Lane v. State, 16 Texas Crim. App., 172; Farmer v. State, 21 Texas Crim. App., 423; Thomas v. State, 14 Texas Crim. App., 200.

For the error of the court in refusing to give the special charge, the judgment is reversed and the cause is remanded.

Reversed and remanded.  