of the grounds of the motion for a new trial is that the verdict of the jury was contrary to the law and the evidence.

It was proved on the trial that the hog was found dead in the branch on Mrs. March's farm, where it was shot. Corn and cotton were cultivated on the farm, though it does not appear that the place where the hog was found was separated by a fence or other protection from the crop. It is described as being on the farm, but at a place overgrown with bushes and vines, forming a dense thicket, with growing corn beyond it. The father of the defendant, Branch, was a renter and cultivated part of the farm, and the defendant, as shown by the evidence, was seen in company with John Lawler at the time they shot the animal (Lawler being jointly indicted with defendant, but not on trial.) It was further shown that defendant, Branch, was seen at work on the farm sometime after this occurrence, but whether on his father's crop, as most likely he was, or some other part of the plantation, is not clearly shown.

The conversation between him and the witness at the time here alluded to, and his answer to the question asked him by the witness, tend strongly to prove that he killed the hog, and was no doubt so understood by the jury. Taken in connection with other evidence adduced on the trial, the act of killing may be regarded as established, and, so regarded, the material inquiry is, whether the evidence warranted the conviction for a willful and wanton killing. This offense (as defined by Blackstone) "is such as is done, not animo furandi, or with intent of gaining by another's loss, which is some, but a weak excuse, but either out of a spirit of wanton cruelty or black and diabolical revenge."

The common law does not punish cruelty to animals, except in so far as it effects the right of property of individuals, and the injury or damages done the owner was but a trespass. The statute of 9 George I., provides: "If any person shall unlawfully and maliciously kill, etc., any cattle," etc.

The construction given to this statute was that the malice must be directed against the owner of the cattle, and not merely against the animal.2

It was also held that an indictment at common law for unlawfully maiming a horse, to the damage of the owner, was only a trespass, and not sufficient to support an indictment.3 This court held, in the case of Allen v. Knight, "an injury to personal property, though committed with actual force, is not indictable at common law, unless accompanied with a breach of the peace."

1 Vol. II., Book 4, 197, 243.

2 2 East's C. L. 1072, 1074.

32 East's C. L. 1072, 1074.

4 3 Tex. 312.

The statute protecting animals from willful and wanton acts of cruelty must be construed with reference to that particular offense.1 Under this article the killing and other acts enumerated must be not only willfully, but also wantonly done, and must be directed towards the animal itself, as distinguished from a willful killing, etc., with intent to injure the owner, as in the preceding article,2 a depraved mind and cruel disposition being common to both. The act must be done intentionally and by design, and without excuse, and under circumstances evincing a lawless and destructive spirit. If the act was only a trespass, it would not be punishable as malicious mischief under the code, because it was charged to be done willfully and wantonly.3 A trespass may be willful without being wanton, according to the intention; and if the intention can not be inferred from the act itself as being the promptings of no other than a bad motive, and without cause or justification, other circumstances must be proved from which the jury may reasonably infer that the act was done wantonly. It may be done under such circumstances as negative a wanton act, as when an animal is in the habit of trespassing on a man's crop and is killed during an act of trespass, not from wantonness, but to prevent the destruction of his crop. In that case he might be liable to a civil suit for damages, but not to a criminal prosecution for malicious mischief.4

This would not apply to a case when the crop was not properly protected against trespass by stock. The charge of the court is expressed in the general terms of the code in substance that the killing must have been willful and wanton to warrant a conviction. No further instructions explaining these terms were asked by the defendant; and without explanation these terms may not have been fully understood by the jury as applied to the facts.

We are of the opinion that the evidence does not support the conviction for a willful and wanton killing of the animal in question, and the case is reversed and remanded.

Reversed and remanded.

1 Art. 2345.

2 2344.

a Whar. Am. Cr. L. 2003; Kilpatrick v. People, 5 Den. 277.

4 Commonwealth v. Walden, 3 Cush. 558; Bish. on Stat. Cr. 437, referring to 2 East's C. L. 1072, 1073; Wright v. State, 30 Ga. 325; State v. Pierce, 7 Ala. (new series) 728.

MALICIOUS MISCHIEF-OWNER OF PROPERTY-PROOF OF WANT OF

CONSENT.

BRUMLEY V. STATE.

[12 Tex. (App.) 609.]

In the Court of Appeals of Texas, 1882.

1. In a Prosecution for Malicious Mischief, a tenant in possession of leased premises is the owner thereof. Therefore an indictment for pulling down a fence thereon which alleges the property in the lessor is not sustained by proof that it was under the control and management of the lessee.

2. The Non-consent of the Owner must be shown in such cases.

APPEAL from the County Court of Denton. The opinion states the nature of the case. imposed by a verdict of guilty.

A fine of ten dollars was

A. M. Cochran testified for the State that he knew the defendant. He was also acquainted with Bob and Elizabeth Ervin. They reside in Denton County, some six or seven miles east from the town of Denton. They own the farm of which the fence is alleged to have been pulled down by the defendant. The fence was in good repair on the 29th day of November, 1881. The farm was then in the possession of Bob Ervin, and he and the witness controlled and managed it. The defendant was charged with and did pull down the fence, and turned his cattle into the field. The fence was pulled down in two or three places. Ervin had wheat down in the field at the time. The witness did not give the defendant permission to pull down the fence and turn his cattle in the field.

On being cross-examined the witness said he did not see the defendant pull down the fence. He did not directly, of his own personal knowledge, know that the defendant did pull it down. He did not see the defendant pull it down, but a very reliable man told the witness that the defendant did it. Bob Ervin testified for the State that he and his mother, Mrs. Elizabeth Ervin, owned the farm which the defendant injured by pulling down the fence on the 29th day of November, 1881. The witness saw the defendant driving his cattle in that direction, and asked him what he was going to do, and that the defendant replied that he was going to take them into the field. The witness told him that he could not do so. The defendant swore that he would turn the cattle into the field. The witness again forbid him, and he replied that if the witness prevented him then, that he would return that night, pull down the fence, and turn the cattle in the field. He told the witness that one McIntosh would be at his house that night, and would assist him to

to pull down the fence and drive the cattle inside.

The witness had

wheat sowed in the field at the time. McIntosh was a sub-tenant under Wetsel who rented the land from the witness and his mother. He, McIntosh, had gathered his crop of cotton and left the place, and the witness had his permission to sow the ground he sub-leased from Wetsel in wheat. The witness had control of the place which belonged to him and his mother. He did not know that his mother ever gave the defendant permission to tear down the fence, but he was satisfied that she did not, as she exercised no control over it whatever at the time. The witness did not give such consent to the defendant.

The morning after the witness had forbidden the defendant interfering with his fence, he found it pulled down apparently from the outside. If cattle had pushed it down the rails would have been thrown inside, whereas they were pulled to the side from the outside. At the place where the fence, was broken, the witness found the tracks of some person, but could not swear that they were the defendant's.

Riley Wetsel testified that he knew the farm in question, and knew the defendant and Bob and Elizabeth Ervin. The fence around this farm is the one the defendant is charged with pulling down. It is Elizabeth Ervin's homestead place, and was in the possession of the witness when injured. The witness had leased it, for the year 1881, and his time was not up until January 1st, 1882. The witness subleased 50 acres to McIntosh, this contract providing that McIntosh's rental interest should subsist only until he had gathered his crop. After McIntosh gathered his crop his control or interest in any part of the premises expired. The witness did not give Bob Ervin permission to sow wheat on the land sub-leased to McIntosh, though he knew that he did sow the wheat; to which the witness made no objection. The witness did not give the defendant or other persons permission to tear down the fence and turn cattle into the field.

Marshall Fulton, for the appellant.

C. Edmondson, for the State.

WILLSON, J. The information charges that the defendant "did willfully, without the consent of the owner, pull down the fence of Elizabeth Ervin and Bob Ervin, said fence being then and there the property of the said Elizabeth Ervin, and Bob Ervin. The evidence shows that the premises enclosed by this fence, at the time the fence was pulled down, were in the possession and under the control of one Riley Wetsel, who had rented the same for and during the year 1881, and whose lease thereof had not expired at the time of the act complained of. By virtue of this renting contract, Wetsel was the legal owner of the fence in question until the 1st day of January 1882, and, therefore, there was a material variance between the allegation in the information and

the proof as to the ownership of the fence at the time it was pulled down.

But, if there was no such variance, we still think the conviction could not stand, because there was no sufficient proof of the want of consent on the part of Elizabeth Ervin one of the alleged owners of the fence. She was not called to testify in the case, and her absence was not accounted for; and her want of consent to the pulling down of the fence is not even circumstantially established. The judgment is reversed and the cause remanded.

Reversed and remanded.

CRUELTY TO ANIMALS-WHAT NOT WITHIN STATUTE.

SWAN v. SAUNDERS.

[14 Cox, 567.]

In the English High Court of Justice, Queen's Bench Division, 1881.

1. Cruelty to an Animal to be within the statute must cause substantial and unnecessary suffering to the animal. Without evidence of such suffering, to keep parrots for a few hours without water is not an act of cruelty upon which a conviction can rightly follow. 2. Six Young Parrots were consigned by railway by S. from L. to a customer at D. They were inclosed in a box, in which some Indian corn but no water was put. About ten hours after leaving L. they were found at H., an intermediate place, by the respondent, in a condition which led him to think that they were suffering from being too closely packed, and were generally in a bad condition. The birds were alleged to have drunk a considerable quantity of water when offered to them, and to have seemed refreshed, and relieved from pain, after the draught. S., the appellant, was summoned before a police magistrate having jurisdiction at H. and was convicted of cruelty to the birds on the ground that he had failed to supply them with water for their journey from L. to D. Held, on appeal from the decision of the magistrate, that the conviction was wrong, that the mere non-supply of water for the birds was not sufficient evidence upon which to found a conviction for cruelty; and further, that in default of evidence to that effect, young parrots were not "domestic animals" within the statutes passed to prevent cruelty to animals.

This was a case stated under 20 and 21 Victoria.1

On the first day of October, 1880, at the Lambeth Police Court, an information was preferred by the respondeut against the appellant under section 2 of 12 and 13 Victoria,2 for that he on the 10th and 11th days of September, 1880, within the district of the Lambeth Police Court, did ill-treat, torture, and cause or procure to be cruelly illtreated and tortured, six parrots.

On the 14th day of October the matter of the same information came