It is charged in the indictment, that the appellant “unlawfully, fraudulently, and feloniously did kill, take, steal, and carry away” one certain hog, of the value of $20, the property of J. H. Calloway. In the motion to arrest the judgment objection is made to the indictment that it charges two separate and distinct offenses, viz: malicious mischief and theft; that, by making use of the word “kill,” the offense is brought within the provisions of article 713 of the Penal Code, which punishes the willful killing of swine or other animals belonging to another; and that the words “take, steal, and carry away,” charge an offense in violation of article 766 of said code, providing a punishment for theft of such animals. We are of opinion that this objection is not well taken. The effect of using the above-quoted language in the indictment was to charge the defendant with first killing the hog and then stealing his dead body, which is an offense different from that set forth in either of the sections above cited. It is defined in article 745 of the code, and the punishment prescribed in articles 756 and 757 of the same. That portion of the code which provides a penalty for stealing domestic animals, specifying them by name, was intended to apply to such animals when in a live state. (Rex v. Puckering, 1 Mood, 242; Rex v. Edwards & Walker, Russ. & Ry., 497.)
And where an indictment charges a defendant with stealing a domestic animal, without alleging whether or not it was alive at the time, the law presumes that the intention *359is to allege the theft of a living animal. (See authorities cited above, and Whart. Crim. Law, § 359.) It was no doubt for the purpose of rebutting this presumption, and of charging the defendant specifically and certainly with theft of a dead hog, that the averment in reference to the killing was introduced previously to that of the taking and carrying away. By the act of killing, the animal was placed in the same condition with any other species of inanimate property, and to steal it was the same offense as the stealing of so many pounds of pork. The indictment was therefore properly framed under the 745th article of the code, and there was no error in refusing to arrest the judgment on the grounds set forth in the motion.
Neither did the court err in refusing the charge asked by defendant, for it was wholly inapplicable to the crime charged, and to the facts proved upon the trial. The offense established by the proof against the defendant was theft, and not malicious mischief. The willful killing of a domestic animal, with intent to injure the owner, would constitute the latter offense; but when the facts go further, as they did in this case, and show a felonious and fraudulent design to appropriate the property to the use of the offender, and deprive the owner of the value of the same, the offense assumes the graver character of theft, and is punishable by confinement in the penitentiary. This intent was not only shown in this case, but the actual appropriation of the property to the use and benefit of the defendant.
The facts established on the trial were amply sufficient to warrant the verdict found against the defendant, the charge of the court fully expounded to the jury the law of the case, and there was no error in any of the rulings of which the appellant has complained. The judgment of the court below is therefore
Aeetkmed.