Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 236
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236 THOMAS V. THE STATE. [Term of
Opinion of the Court.
The defendant moved for a new trial on the grounds stated
in his motion and also in arrest of judgment. 1. Because the
indictment does not allege what injury, if any, was done to the
owner of the property charged to have been killed, and 2. Because
the indictment does not lay any basis for the determination
of the amount .of the fine to be imposed.
The motion for a new trial and motion in arrest of judgment
being overruled, defendant appealed and assigns for error, the
overruling his motions, and error in the instructions to the jury,
and for refusing to give the instruction asked by defendant.
The defendant asked the court to instruct the jury that if
they believed from the evidence that the defendant killed the
hogs for the purpose of protecting his crops and not to injure
the owner, defendant could not be convicted. This instruction
was properly refused for the reason stated by the judge, if for
no other, that it was not warranted by the evidence. The refusal
to give the charge and the action of the court on the other
grounds of the motion for a new trial, need not be further examined,
if, as contended by appellant, the motion in arrest of
judgment should have been sustained.
The provision of the Code on which the indictment was
found, punishes the willful killing of any of the animals enumerated
in the statute, when done with intent to injure the
owner, by a fine not less than three times the amount of the injury
done to the owner, and not exceeding ten times the amount
of such injury. (Article 2344).
The indictment states the value of the hogs, and the intent
with which they were killed, but fails to allege the amount of
the injury done to the owner. The value of the property is
not made the standard for measuring the penalty. As a question
of law, it cannot be said that the value of the hogs was
the amount of the injury done the owner; if such be the fact,
it should have been so averred in the indictment, and not left
to argument or inference.
The injury done to the owner of the property being the essential
element in the punishment, and the basis for assessing it,
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/244/: accessed July 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .