Citation Numbers: 3 Tex. Ct. App. 31
Judges: Winkler
Filed Date: 7/1/1877
Status: Precedential
Modified Date: 9/3/2021
The indictment charges that the accused, at a time and place stated, “ did then and there unlawfully and willfully kill, by shooting, a certain gelding, the property of Preston Abbott, of the value of fifty dollars, with intent to injure the owner, contrary,” etc.
After trial and conviction the accused made a motion in arrest of judgment, on the following grounds:
1. Because the indictment in this case is not sufficient in law to support the judgment rendered thereon.
-2. Because the indictment does not charge any offense
3. Because said indictment does not allege the amount of injury done to the owner of the gelding alleged to have been shot.
4. Because said indictment does not allege-any amount of injury done, so as to enable the jury trying the case to have a sufficient predicate upon which to regulate the fine imposed.
The article of the Penal Code upon which this indictment must rest, if at all, provides: “If any person shall willfully kill * * * any horse * * * with intent to injure the owner thereof, he shall be fined not less than three times the amount of the injury done to the owner by such offense, and not exceeding ten times the amount of such injury.” Code, art. 713 (Pasc. Dig., art. 2344).
It will be seen that, in case of conviction, the amount of the fine is to be regulated, not by the value of the animal killed, or by the amount of injury done to the animal, but by the amount of the injury done to the owner. Hence, in order to admit evidence by which the jury could fix the amount of the fine to be imposed, it is essential that the indictment should allege the amount of injury done the owner by the act of the defendant.
In construing the same article of the Code, Reeves, J., in delivering the opinion of the court in Thomas v. The State, 42 Texas, 236, says: “ The injury done to the owner of the property being the essential element in the punishment, and the basis of assessing it, the indictment should have followed the terms of the Code and averred the amount of the injury.”
In a similar case, The State v. Heath, 41 Texas, 426, it was said: “ Under this statute the injury done the owner enters into the penalty, and is the element out of which it
On the statute as applied in these cases, the indictment under present consideration must be held insufficient in that it does not aver the amount of injury done to the owner of the property by the act complained of.
The judgment of the District Court of Bosque County in this case is reversed, and the cause dismissed.
Reversed and dismissed.