McLaurine v. State
Decision Date | 24 May 1890 |
Court | Texas Court of Appeals |
Parties | McLAURINE <I>v.</I> STATE. |
Appeal from county court, Comanche county; C. E. WILLIAMSON, Judge.
Asst. Atty. Gen. Davidson, for the State.
This case was a prosecution by information under article 680 of the Penal Code for willfully and wantonly killing dumb animals. In prosecutions for this offense, the law being intended for the protection of the animals themselves, it is not necessary that the indictment or information should allege the ownership of the animals. Turman v. State, 4 Tex. App. 586; Darnell v. State, 6 Tex. App. 482; Willson, Crim. St. § 1168. In the information before us the charge is that the defendant "did unlawfully, willfully, and wantonly kill four (4) cows, the property of L. T. White," etc. It was in proof that the animals did not in fact belong to White, but that they belonged to his wife and her children by a deceased former husband, — that is, they belonged to the estate of Mrs. White's former deceased husband. Defendant requested the court to charge the jury This charge was refused by the court, and is assigned for error upon an exception saved to its refusal.
The rule is that the material allegations which constitute the offense charged must be stated in the indictment, and they must be proved in evidence. But allegations not essential to such a purpose, which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are considered as mere surplusage, and may be disregarded in evidence. Mr. Bishop says, however: ...
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