Meyer v. State

Appellant was convicted on a complaint charging malicious mischief and was fined $200.00.

Appellant lived on a three-acre tract of ground inclosed by a fence of three wires in which he kept some stock. A neighbor had an adjoining tract, a little smaller in size, on which he kept three horses. The fence between them apparently was inadequate to keep the stock separated and appellant sought to make it effective by charging the top wire with electricity. This was done by connecting it with the electric light wires in his home, carrying one hundred and ten volts. The practice of charging fences with electricity is a common one in the community but it is usually attained by dry cell batteries which charge the wire with twenty-eight volts. A hundred and ten-volt current is sufficient to kill human beings or animals but twenty-eight volts is not.

Appellant and his neighbor were strangers to each other and there is no indication of any animosity existing between them. There is no denial on the part of the appellant that he charged the wire with electricity, as stated above, but he says he did so for the purpose of keeping the stock away from the fence, his own as well as his neighbor's, and that he would not have done so had he known the current to be sufficient to kill one of the animals. The fact that his own stock were exposed to the same fence lends verity to his statement.

The State made no effort to prove evil intent on the part of the appellant but relies wholly on the general rule that intent to injure might be presumed from the perpetration of the act. The case was tried to the court without a jury and there is no charge on the subject but it is perfectly apparent that the trial court indulged such presumption, without which the evidence will not sustain the conviction. If the court is authorized under the law to indulge such presumption of intention under the facts of this case the judgment must be affirmed. If he is not so authorized then the judgment should be reversed. A reasonable interpretation of the law from decisions of this court apparently does not sustain the State in this case.

Choate v. State, 221 S.W. 980, is a case in which the hogs of one Sikes had depredated the property of Choate, which was inclosed by an inadequate fence. Choate admitted killing the hog on his premises and claimed that it was for the protection of his peanuts and not for the purpose of injuring Sikes, against whom he held no animosity. Judge Morrow, in writing the opinion, concluded:

"Such conviction could be sustained only upon proof that the intent was to injure the owner of the animal. Such intent could not be inferred from the injury for the reason that the inference that the animal was killed in the protection of his property, * * *, would be drawn unless the contrary appeared. See Thomas v. State, 14 Tex. App. 200[14 Tex. Crim. 200]; Caldwell v. State,55 Tex. Crim. 164, 115 S.W. 597, 131 Am. St. Rep. 809; Hobbs v. State, 75 Tex.Crim. R., 170 S.W. 1100."

In this case there was admittedly an intention to kill the hog, a right which Choate claimed for the protection of his property. 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, 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 wire was charged with electricity, in the absence of any showing of ill will towards the owner of the animal. The action is not against the appellant for killing the animal but for killing the animal WITH THE INTENT TO INJURE THE OWNER. The act which he committed, unwise and dangerous as it was, could just as well have resulted in injury to himself and would undoubtedly have so resulted had his own animals been first to contact this wire. Under the circumstances of the case he could not have been assured that the neighbor's horse would be the first and only animal to be injured. We think that the exception to the rule is much more apparent in the instant case than in those cited above.

For the insufficiency of the evidence the judgment of the trial court is reversed and the cause is remanded.

ON MOTION FOR REHEARING.