Preston v. State
| Decision Date | 09 May 1928 |
| Docket Number | (No. 11524.) |
| Citation | 6 S.W.2d 757 |
| Parties | PRESTON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Wood County Court; H. V. Puckett, Judge.
V. E. Preston was convicted for killing hogs with intent to injure the owner, and he appeals. Reversed and remanded.
Bozeman & Cathey and A. J. Britton, all of Quitman, for appellant.
A. A. Dawson, State's Atty., of Austin, for the State.
Conviction for killing hogs with intent to injure the owner; punishment, a fine of $10.
Appellant and the party whose property he is charged with destroying were neighbors and seem from the record to have had trouble over the hogs at former times. That appellant killed three hogs just inside his fence on the day in question seems without dispute.
The first question presented by appellant is that error was committed in refusing his plea to the jurisdiction. We are not able to assent to this proposition. It appears that a complaint had been filed in the justice court of the precinct of appellant's residence, in which he was charged with killing these hogs. This complaint was dismissed before that upon which the prosecution is based was filed in the county court. This presents the only support for the claim that the county court was without jurisdiction. We have no doubt that under article 64 of the 1925 C. C. P., as between the rights of conflicting jurisdictions, that of the court in which the case was first filed should be upheld. We know of no possible rule or decision forbidding the dismissal of a prosecution by the proper authorities. No decisions are cited by appellant holding to the contrary. The complaint against appellant which was filed in the justice court having been dismissed by proper authority, there was nothing to prevent the subsequent filing against him of another complaint charging the same offense, in the county court. We find nothing in the authorities cited in appellant's brief holding against this conclusion.
Exception was taken to the charge of the court for telling the jury that in prosecutions for this offense the intent to injure may be presumed from the perpetration of the act. Appellant cites us to Choate v. State, 87 Tex. Cr. R. 328, 221 S. W. 980. In Lane v. State, 16 Tex. Cr. App. 172, this court held it proper to give in charge to the jury the language complained of, which appears to be an exact copy of a part of the statute defining this of fense. See article 1373, P. C. 1925. We have been unable to find any citation of this case on this point, or any other decision of this court upholding the giving of this part of the law in charge to the jury. Without any discussion of the holding in the Lane Case, supra, this court in the later opinion of Choate v. State, supra, said that in a case whose facts showed that the animal killed was on the premises of the accused, which were inclosed with an insufficient fence, a conviction could be sustained only upon proof that there was intent to injure the owner of the animal. It is further stated in the opinion that such intent could not be inferred from the injury, for the reason that the inference that the animal was killed in the protection of the property upon which it was trespassing would be drawn unless the contrary appeared. To some extent there appears a conflict between the Lane Case, supra, and the Choate Case, supra. In the instant case, in addition to the claim that the hogs, at the time they were killed, were in the inclosure of appellant, he...
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State v. Clayton
...justice of peace in vacation), followed in Bass v. State (1931) 159 Miss. 132, 131 So. 830; Preston v. State (1928) 109 Tex.Crim.Rep. 610, 6 S.W.2d 757; Epps v. State (1936) 130 Tex.Crim.Rep. 398, 94 S.W.2d 441; State v. Van Ness [109 Vt. 392, 199 A. 759, 117 A.L.R. 415] ante, 415. See also......
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State v. Dennington
... ... There are few reported cases dealing with the precise point raised here. The majority of them are adverse to the position taken by the defendants, unless some statute is involved. Illustrations of these decisions are Rodgers v. State, 101 Miss. 847, 58 So. 536; Preston v. State, 109 Tex.Cr.R. 610, 6 S.W.2d 757; State v. Van Ness, 109 Vt. 392, 199 A. 759, 117 A.L.R. 415; State ex rel. Mitchell v. Court of Coffeyville, 123 Kan. 774, 256 P. 804. The cases are collected and discussed in 117 A.L.R. 423 ... Perhaps, the strongest case in defendants' ... ...
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Ex parte Knight, 01-94-01152-CR
...been originally filed there. The justice court retained that jurisdiction until it dismissed the complaint. See Preston v. State, 109 Tex.Crim. 610, 6 S.W.2d 757 (App.1928) (holding that where the complaint filed in justice court was dismissed, another complaint charging the same offense co......
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Meyer v. State
... ... Since the fence inclosing his peanuts was inadequate the State contested this right but did not prove animosity. The quotation from the opinion expresses the conclusion of the court. To like effect is the holding of this court in Preston v. State, 109 Tex.Cr.R. 610, 6 S. W.2d 757 ... It would be a harsh rule which would in every case impute intent from the fact of the commission of an act resulting in injury. The death of the animal in the instant case is too remote and the presumption would not follow because the ... ...