A bill of exceptions was saved at the trial of this case to a special instruction given the jury at the instance of the county attorney, in the following words, viz.: “ The defendant cannot justify killing the hogs for trespassing on his crop unless the" crop was properly protected against trespass of stock.”
A similar case, in this respect, to the one we are considering is that of Branch v. The State, 41 Texas, 622; and inasmuch as the opinion of Eeeves, J., in that case disposes of the above-mentioned bill of exceptions and the legal questions discussed in the very interesting brief of counsel for appellant, we perhaps cannot better present the law than by quoting at length from that decision. He says: “The statute protecting animals from willful and wanton acts of cruelty must be construed with reference to that peculiar offense. Art. 2345. Under this article the killing and other acts enumerated must be not only willfully, but also wantonly, done, and must be directed towards the animal itself as distinguished from a willful killing, *231etc., with intent to injure the owner, as in the preceding article (2344) ; a depraved mind and cruel disposition being common to both. The act must be done intentionally and by design, and without excuse, and under circumstances evincing a lawless and destructive spirit. If the act was only a trespass, it would not be punishable as malicious mischief, under the Code, because it was charged to be done willfully and wantonly. Whart. Cr.Law, 2003; Kilpatrick v. The People, 5 Denio, 277
“ A trespass may be willful without being wanton, according to the intention ; and, if the intention cannot be inferred from the act itself as being the promptings of no other than a bad motive, and without cause or justification, other circumstances must be proved from which the jury may reasonably infer that the act was done wantonly. It may be done under such circumstances as negative a wanton act, as where an animal is in the habit of trespassing on a man’s crop and is killed during an act of trespass, not from wantonness, but to prevent the destruction of his crop. In that case he might be liable to a civil suit for damages, but not to a criminal prosecution for malicious mischief. The Commonwealth v. Waldon, 3 Cush. 558; Bishop’s Stat. Cr. 437; Wright v. The State, 30 Ga.; The State v. Pierce, 7 Ala. 728. This would not apply to a case where the crop was not properly protected against trespass by stock.” 41 Texas, 622.
The evidence in this case showed that defendant’s field was not protected by a fence which would keep out hogs. There is no error apparent upon the record, and there was sufficient evidence to warrant the verdict and judgment. The judgment is, therefore, affirmed.
Affirmed.