Cryer v. State
| Decision Date | 23 December 1896 |
| Citation | 38 S.W. 203 |
| Parties | CRYER v. STATE. |
| Court | Texas Court of Criminal Appeals |
On rehearing. Granted. Reversed.
For former opinion, see 37 S. W. 753.
B. E. Moore, for appellant. Mann Trice, for the State.
At a previous day of this term of this court, the appeal was dismissed, for the want of a sufficient recognizance. 37 S. W. 753. On motion for rehearing, it is made to fully appear that the recognizance is sufficient, and that it was a mistake of the clerk in copying the same into the record. The motion for a rehearing is granted, and the cause reinstated, and it will now be considered upon its merits.
It appears from the record that appellant had been tried upon an information charging him with willfully and wantonly maiming and disfiguring a mare. A trial under this information before the court, without a jury, resulted in the acquittal of defendant. Afterwards an information was presented, charging that "defendant did unlawfully and willfully with fire and shucks, maim and wound one certain mare, the property of Brooks Collier, within the inclosure of defendant." Upon the trial under this last information (which resulted in the conviction of appellant), he interposed the plea of former acquittal. It will be noted that the last information charges that appellant "did unlawfully and willfully maim and wound one certain mare, the property of Brooks Collier." The plea sets up that it was the same transaction, — the same offense. The court instructed the jury to the effect that they were not the same offenses. The court, no doubt, based its instructions upon the opinions of this court in several cases, and was justified in giving such instructions to the jury. The question before us is this: Can a party be guilty of violating article 787, Pen. Code 1895,—that is, be guilty of willfully or wantonly killing, maiming, wounding, disfiguring, poisoning, cruelly or unmercifully beating or abusing a horse, etc.,—when the killing, maiming, wounding, etc., was done while the animal was within the inclosed land of the person killing, maiming, wounding, etc., said horse, as defined in article 799?1 The instructions of the court proceeded upon the assumption that notwithstanding the killing, wounding, maiming, etc., may have been done willfully or wantonly, yet if the animal killed, maimed, wounded, etc., is within the inclosed land of the owner, he being the party charged, he cannot be prosecuted under article 787, but must be prosecuted under article 799. Now, we hold that it makes no difference where the killing, maiming, wounding, etc., was inflicted upon the animal, whether in or out of the inclosure. If done willfully or wantonly, the party killing, etc., is amenable to article 787, and should not be prosecuted under article 799. We are not to be understood that if prosecuted under article 799, and the proof develops the fact that the killing, etc., was done wantonly or willfully, he could not be convicted; but we are to be understood as holding that a person can be guilty of...
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