Shirley v. State

• Decision Date: 22 April 1893
• Citation: 22 S.W. 42
• Parties: SHIRLEY v. STATE.
• Court: Texas Court of Criminal Appeals

22 S.W. 42

SHIRLEY v. STATE.

Court of Criminal Appeals of Texas.

April 22, 1893.

Appeal from Burnet county court; James A. Graham, Judge.

John Shirley, Sr., was convicted of willfully maiming, wounding, and disfiguring swine with intent to injure the owner, and appeals. Affirmed.

J. G. Cook, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was indicted for willfully maiming, wounding, and disfiguring certain swine with intent to injure the owner. The only question submitted for our consideration is the sufficiency of the evidence to support the conviction. The owner, Burchfield, testified that his hogs were near defendant's field fence, and on the outside of it, when defendant's dogs were set upon them; that he heard some one "hissing the dogs," and subsequently heard defendant "either setting the dogs on the hogs or calling them off;" that he was hard of hearing, and would not swear positively which he was doing. The dogs soon ceased biting the hogs, and went away. Defendant and witness had gotten along well together prior to this occurrence, and, so far as he knew, were friendly. The prosecution proved that on another occasion defendant had put his dogs upon Burchfield's hogs, and tore one of them badly. When this occurred, the hogs were about a mile from defendant's residence, outside of any inclosure. This testimony was elicited from a son of Burchfield. As to the mutilated condition of this hog, this witness was corroborated by the witness Wilson. Defendant testified that, on the first occasion mentioned, his children were responsible for putting the dogs after the hogs; that he expostulated with them about their conduct, and called off the dogs, and he knew nothing whatever of the other transaction. This, in substance, is the evidence. There were two issues necessary to be decided by the jury in order to find defendant guilty: Did he cause the dogs to wound the hogs, and, if so, was it with the intent to injure the owner? Both were decided adversely to him. The act being proved, the intent to injure may be presumed. Pen. Code, art. 679. In aid of this presumption, the state proved a repetition of the act. Giving him the benefit of the doubt as to his intent upon a single occasion, it would hardly be reasonable to suppose that defendant would have repeated the act upon the hogs of the same party under the circumstances detailed with intent other than that of injury to the owner. The judgment is affirmed....