William Davis, the appellant, was convicted of wantonly killing a horse, the property of K. W. Davis. From the statement of facts it appears that the horse was “a bad fence-breaker,” and that his owner “had to take him up several times on that account.” That, on the day before the horse was killed, defendant loaded the gun, and swore that, if the horse came in his field, “he would fix him.” The horse did not come in that evening. That on next day, about twelve o’clock, he came in and defendant drove him out. He came in again about the middle of the afternoon, and was driven out again by defendant, and, entering again about sundown, defendant took his gun and went out towards the horse, and the report of a gun was heard.
These facts in regard to the loading of the gun, entering the field by the horse and the conduct of defendant are found in the evidence of Mary Lacey. The house was found dead from a gun-shot wound, not far off, a few days after.
Do the above facts support a verdict of guilty of wantonly killing the horse ? We think not. The legal principles directly applicable to this question are very clearly stated in the following cases: Branch v. State, 41 Texas, 622; Collier v. State, 4 Texas Ct. App. 12; Lott v. State, *159 Texas Ct. App. 206; Jones v. State, 9 Texas Ct. App. 178.
It is suggested in Branch v. State, that the principles enunciated in that opinion “ would not apply to a case where the crop was not properly protected against trespass by stock.” Whether the principles so clearly stated in that and other subsequent opinions are in conflict with this suggestion, we will no t stop at this place to discuss.
Every presumption being in favor of the defendant, proof that the crop was not properly protected should have been made by the State, in order to carry the burden and establish the guilt of defendant by showing that the killing was wantonly done.
The evidence not supporting the verdict, the judgment is reversed and the cause remanded.
Reversed and remanded.