The information in this case is under article '2344, Pascal’s Digest. It charges that the defendant, on •or about August 19, 1878, in the county of Jefferson, “ did unlawfully, wilfully, and wantonly kill a certain dumb animal, namely, a dog, the property of another person; contrary to the statute in such cases made and provided, and against the peace and dignity of the State.”
*478The first assignment of errors refers to the charge of the court, and is as follows, to wit:
“ 1. The court erred in delivering to the jury Paschal’s Annotated Digest of the Laws of the State of Texas, in connection with a verbal charge, at the same time referring them particularly to articles 2344 and 2345, and in instructing and permitting them to take said law-book with them on their retirement, the parties having agreed only to a verbal charge.”
The question raised by this assignment should have been presented by bill of exceptions. The defendant, by himself or counsel, should have saved a bill of exceptions to the action of the court below which is complained of, so as to have brought the question properly before this court.
The evidence, both on the part of the prosecution and the defence, shows that defendant shot and killed a dog, the property of one Wilson Gainer. The witnesses introduced on the part of the State testified that the dog got after a rabbit in the field of Gainer, where his sons were at work; that the dog pursued the rabbit into the adjoining field of Zack McDaniel, and that the defendant there shot and killed the dog while he was after the rabbit. The witnesses on the part of the defence testified that they saw Gainer’s dog come upon the premises of Zack McDaniel, go to a scaffold upon which he had meat drying, take a piece of meat therefrom,, and that the defendant, who was then a boy living with his father, ran into the house, got the gun, and shot the dog-while he was running off with the piece of meat. There was an irreconcilable conflict in the evidence offered on the part of the prosecution and the defence. The jury saw proper to believe the State’s witnesses, and in this we cannot say that they committed an error.
We believe that the court properly sustained the exceptions to the evidence referred to in'defendant’s bill of excep*479tions. The hearsay declarations of Zack McDaniel were not admissible in evidence as to the directions given by him. to his son, the defendant, in case the same dog was caught in mischief upon the premises of Zack McDaniel.
What the dog had done before could not be shown in-evidence as a defence, so as to afford a legal excuse for the-defendant to kill the dog at the time he did. The fact that: the defendant was a minor, and lived at the time with and was controlled by his father, would not shield him from punishment for wilfully and wantonly killing the dog. Our statute provides that “ no person shall be convicted of any offence committed before he was of the age of nine years, nor of any offence committed between the years of nine and thirteen, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the-act constituting the offence.” If the evidence had shown that defendant, at the time he killed the dog, was between the ages of nine and thirteen, the burden of proof would have been upon the State to have shown that he had discretion sufficient to understand the nature and illegality off the act constituting the offence. The fact that defendant was a minor only proves that he was under twenty-one years-of age, and the further fact that he was living with his father, and that he was directed by his father to Mil the dog, without further evidence in regard to defendant’s age at the-time, would not shield him from punishment for wilfully and wantonly killing Gainer’s dog.
The court did not commit an error in overruling defendant’s motion for new trial and in arrest of judgment. The-information is a good one. It is made an offence by our statute to wilfully and wantonly kill a dog, as it is to kill any other dumb animal, the property of another. PascDig., arts. 2344, 2345.
We find nothing in the entire record that would warrant us in reversing the judgment, and it is therefore affirmed -
Affirmed.