Wallace v. State

• Decision Date: 31 January 1868
• Citation: 30 Tex. 758
• Parties: HENLEY WALLACE v. THE STATE.
• Court: Texas Supreme Court

30 Tex. 758

HENLEY WALLACE

v.THE STATE.

Supreme Court of Texas.

January, 1868.

In an indictment for malicious mischief, under the 713th article of the penal code, it is not necessary to prove malice on the part of the accused. It is enough that the act was willfully done in the language of the statute. Pas. Dig. art. 2344.

The fact that a third person may have authorized the killing is not admissible evidence, unless the authority can be traced to the owner of the property.

The fact that the accused carried the property to the owner is no defense, the offense being complete by the killing.

APPEAL from Lavaca. The case was tried before Hon. WESLEY OGDEN, one of the district judges.

The defendant was convicted of malicious mischief for killing hogs. It was proved that the defendant killed the hogs, but said he did so through mistake. He killed eleven, and sent six of them to the owner. The other facts are sufficiently stated in the opinion of the court.

Mills & Tevis, for the appellant, cited articles 1713 and 1714 of the penal code, and the authorities in Pas. Dig. note 680.

John W. Harris, for the state, argued the facts of the case.

LINDSAY, J.

From a conviction under the statute for malicious mischief the appellant has brought his case to this court for revision.

He was indicted for a violation of article 2344 of the criminal code (Pas. Dig. p. 460), for willfully killing eleven hogs, of the value of $10 each, the property of Daniel Gandy, with intent to injure the owner thereof. The proof established conclusively the killing, the value of the hogs, and the knowledge of the accused that they were the property of Daniel Gandy. But it is insisted that the court erred in the charges to the jury on the trial, and that the jury was misled in the finding of their verdict. In an indictment under this statute it is not necessary to prove malice on the part of the individual who has committed the act complained of. If the act is willfully done, in the language of the statute, the law will presume that he either maliciously, or recklessly and wantonly, intended the consequences of his own act, which would necessarily result in injury to the owner of the property. In contemplation of the penal law, the willful killing of the hogs with this intent was the gravamen of the charge, and in that act the offense was complete against society, and could not be repaired or compounded by any subsequent satisfaction of the owner of the property for the injury thus perpetrated. This view of the case disposes of the instruction asked by the counsel of the accused and refused by the court, “that on a charge of malicious mischief malice will not...