
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1911.)
    Criminal Law (§ 796) — Instructions—Punishment— Separate Counts.
    Where an indictment charged in separate counts the offenses denounced by Pen. Code 1895, art. 786, punishing by fine of not less than $10 nor more than $200 any person willfully maiming any domestic animal, and article 787, punishing by fine not to exceed $250 any person wantonly maiming any domestic animal, an instruction that, if accused wantonly maimed a domestic animal, he was guilty, and the jury should fix his punishment at a fine of not less than $10 nor more than $200, was erroneous, because authorizing the jury to find accused guilty under one article and authorizing the punishment prescribed by the other.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1933; Dec. Dig. § 796.]
    Appeal from Madison County Court; Tom D. Clark, Judge.
    Nelse Johnson was convicted of crime, and h’e appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   DAVIDSON, P. J.

The indictment contains two counts; the first charging appellant unlawfully and maliciously maimed, wounded, and disfigured a horse, the property of Jack Johnson, with the intent then and there to injure the said Jack Johnson. The second count charges that he did unlawfully, willfully, and wantonly maim, wound, cut, and bruise one horse, the property of Jack Johnson.

The first count was framed under article 7SG of the Penal Code, and the second count under article 787. The court gave the following instruction to the jury: “If you find beyond a reasonable doubt that the defendant, Nelse Johnson, did on or about the 29th day of October, A. D. 1910, wantonly wound or maim a domestic animal or horse, as charged in the indictment, the property of Jack Johnson, you will find him guilty, and fix his punishment at a fine of not less than $10 nor more than $200.” Appellant excepted to this charge. Among other objections to this charge, appellant says it affirmatively misdirects the jury as to the law and the punishment. Article 786 denounces punishment against any one who willfully and maliciously wounds, maims, or disfigures a horse; and article 787 punishes where willfully or wantonly wounded, etc. The punishment under article 786 is not less than $10 nor more than $200. Under article 787 the punishment is not to exceed $250. The punishment assessed by the jury was $10.

It is insisted in the bill that the wrong punishment was given. If he wantonly did it, as charged by the court, the punishment should have been given as prescribed in article 787, and not in 786. It is evident that the charge is erroneous under any view to be taken of it. If the accused was to be convicted under article 7S6, then the court was in error in authorizing the jury to convict for wantonly injuring the animal. The court charged wantonly, and not maliciously or willfully. If he was to be convicted under article 787, then the court has given the wrong punishment. The charge seems to be a confused statement in regard to the law and the punishment, in that the court instructed the jury to find under one article and gave the punishment under the other. We are of opinion that this is such error as requires a reversal of the judgment. The court cannot submit one offense, and authorize a conviction for the punishment denounced for another offense.

There are other matters complained of, but we hardly think them of sufficient importance to require a reversal.

For the error indicated, the judgment is reversed, and the cause is remanded.  