This prosecution, which was for the malicious killing of a horse, under provisions of Article 679 of the Penal Code, was originally commenced in a justice’s court, and from thence appealed to the county court, where a second conviction was had, from which this appeal is taken. A motion was made to quash the complaint, but in our opinion it sufficiently charges the offense, and the court did not err in overruling the motion.
An application for continuance made by defendant and overruled by the court was, upon exceptions saved at the time, claimed to be erroneous, and is also assigned as error. Consid*177ered in the light of the evidence adduced on the trial, the evidence sought from the absent witnesses was perhaps material, but no sufficient diligence to obtain the testimony is disclosed in the application.
Amongst other things, the court charged the jury that "the intent to injure the owner is the gist of this offense, but such intent may be presumed from the fact of killing.” And again: - "If you find that defendant killed the horse mentioned in the complaint, you may from that fact presume that such killing was done with intent to injure the owner, if from all the facts and circumstances of the case it is in your judgment proper for you to do so.”
Under the law as it formerly was, the intent to injure could not be presumed from the mere fact of killing. (Newton v. The State, 3 Texas Ct. App., 245.) Since that decision, however, the law has been changed in that regard, and it is now expressly provided in the statute (Penal Code, Art. 679) which defines the offense that in prosecutions under this Article the intent to injure may be presumed from the perpetration of the act.” This provision annexed to the statute, we think, makes it obvious that the Legislature intended to make the presumption of intention dependent upon and inferable alone from the proof of the perpetration of the act, and doubtless, also, further intended to make this offense an exception to the general rule with regard to presumptions of law from acts done, in so far as the same are permitted to be given in charge by the court to the jury. (Jones v. The State, 13 Texas Ct. App., 1.) We do not think the court erred in the charges we have quoted above.
As before stated, this prosecution is for “wilfully” killing the horse, and is brought under Article 679, which statute is essentially different from Article 680, under which the cases of Davis v. The State, 12 Texas Court of Appeals, 11, and Thomas v. The State, 14 Texas Court of Appeals, 200, were prosecuted. In those cases the prosecutions were for “wantonly” killing the animals alleged to have been killed.
A mature consideration of the facts in this case has, however, ed us to the conclusion that the evidence does not sustain the onvietion. According to our reading and understanding of it, ppellant killed the horse, which was a vicious animal, because, s was stated by the witness for the State, he was compelled to o so to protect his own property. He also stated at the time hat he was sorry that he had to do it. Was this a “wilful” *178killing in contemplation of law? In Thomas v. The State, 14 Texas Court of Appeals, 200, it is said: “When-used in a penal statute, the word 'wilful’ means more than it aoes in common parlance. It means with evil intent, or legal malice, or without reasonable ground for believing the act to be lawful (citing authorities). In common parlance, it is used in the sense of intentional, as distinguished from accidental or involuntary. To make the killing of the sheep, therefore, a wilful act, it must have been committed with an evil intent, with legal malice, and-without legal justification.”
We do not believe the evidence, as exhibited in the record before us, sufficiently shows such evil intent as would make the killing a wilful one in contemplation of law, wherefore the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
Opinion delivered May 14, 1884.