McMahan v. State

• Decision Date: 31 January 1891
• Parties: McMAHAN v. STATE.
• Court: Texas Court of Appeals

16 S.W. 171

McMAHAN v. STATE.

Court of Appeals of Texas.

January 31, 1891.

Appeal from Madison county court; J. C. MORRIS, Judge.

Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

Defendant was charged by information with willfully and wantonly killing two swine. He offered to prove by the state's witness, Morgan, that at the time the hogs were killed as testified by said witness they were destroying his (defendant's) corn in defendant's field, and the court refused to allow him to make said proof. Defendant also proposed to prove by said witness that at the time said hogs were killed as aforesaid in defendant's inclosure said inclosure was surrounded with a good fence, which latter testimony was objected to by the state upon the ground that the inclosure where the hogs were killed was in a subdivision of the county in which the hog law was in force, and this objection was sustained, and the evidence excluded. The assistant attorney general confesses error in these rulings of the court, and cites us to Brewer v. State, 28 Tex. App. 565, 13 S. W. Rep. 1004, in which the identical evidence was proposed and refused in a similar prosecution, and in which case it was held "that the proposed evidence was admissible to rebut the willfulness and wantonness of the act, and that its exclusion was error." Willson, Crim. St. § 1169. The judgment is reversed, and cause remanded.