
    SANDS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 18, 1914.)
    1. Animals (§ 45) — Poisoning Animals— Ckiminal Prosecution — Evidence.
    In a prosecution for poisoning stock with intent to injure the owner, evidence, though circumstantial, held sufficient to warrant a conviction.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 123-140, 191, 192; Dec. Dig. § 45.*]
    2. Criminal Law (§ 1169) — Admission of Evidence — Harmless Error.
    In a prosecution for the poisoning of animals with-arsenic, where the evidence was wholly circumstantial, the admission of evidence that, after the animals were found dead, defendant ordered some arsenic, was not reversible error; there being evidence that defendant had arsenic on hand at the time the stock were killed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §.§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    3. Indictment and Information (§ 181)— Variance Between Allegations and Proof.
    In a prosecution for unlawfully poisoning animals with intent to injure the owner, the fact that the information charged that 9 head of mules and 4 head of mares were poisoned, and the evidence showed that only 12 carcasses were found, with one missing, was immaterial, since the gist of the offense was willfully poisoning stock with intent to injure the owner, the number being immaterial.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 557-561; Dec. Dig. § 181.]
    Appeal from Shackelford. County Court; J. A. King, Judge.
    F. Sands was convicted of poisoning animals, and he appeals.
    Affirmed.
    B. F. Reynolds, of Throckmorton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

The information in this case charged appellant with unlawfully poisoning 9 head of mules, and 4 head of mares, the property of J. F. Sedwick, with the intent to injure the owner of the stock. He was adjudged guilty, and Ms punishment assessed at a fine of $200.

The evidence is entirely circumstantial, and appellant earnestly insists that it is not of that strength and cogency to support the verdict We have studied the record diligently, and are of the opinion that the court committed no error in overruling the motion for a new trial. That the stock was poisoned is admitted in the record, and they were poisoned by the use of arsenic is also admitted; that appellant bore intense ill will towards the owner of the stock is shown beyond the peradventure of a doubt, thus furnishing evidence of motive. He lived in a house adjoining Mr. Sedwick’s pasture; he passed through this pasture in going from his house to his pasture. At the place where the stock is shown to have been poisoned, there was found some sulphur with a mixture in it, looking like salt or some other substance in it, that the mules and mares had licked, causing their death. At appellant’s place was found a “bucket containing sulphur and some white mixture”; this mixture being of the same character and kind found where the stock had been poisoned. There was also found at appellant’s house several pounds of arsenic, and the stock had died from arsenic poisoning. On the ground where the stock had been found dead, tracks were found leading towards appellant’s house. As the mixture shown to have killed the stock was of the same character and kind found at appellant’s house, we are of opinion that the facts and circumstances in the case are sufficient to authorize a conviction. After the stock was found dead, when talking to a neighbor, in reply to a remark “that it was hard to be charged with poisoning a neighbor’s mules,” said, “Well, I don’t know; John F. Sedwick is a d-ned rascal, and the only way to reach some people is through their pocketbook.”

It was proven that, after the mules were found dead, appellant ordered a quantity of arsenic, such as a man would not ordinarily have any use for. This testimony was objected to, as it occurred after the commission of the offense charged. The testimony further showed that this arsenic was ordered before his arrest charging him with this offense, and that after he was arrested he objected to receiving it. The court in his qualification to this bill shows that appellant had arsenic on hand at the time the stock were killed, and was keeping it in quantities not kept by the ordinary man. As this matter is presented to us, we do not think it presents reversible error, as this was a case depending wholly upon circumstantial evidence.

The only other objection we deem necessary to notice is that the information charges that “9 head of mules and 4 head of mares were poisoned,” while the evidence shows that only “12 carcasses were found and one missing.” It is contended this presents a variance fatal to the conviction. The offense with which appellant was charged is willfully poisoning -stock with intent to injure the owner, and the number actually poisoned we think immaterial,- if áñy’ stock belonging to Sedwick were poisoned by appellant willfully. ■ ; ■

The judgment is affirmed.  