Willsou, Judge.
This conviction was had upon an information charging the defendant with having wilfully and wantonly killed a cow, the property of H. A. Horton. It was proved beyond question that defendant had killed the cow, but the cause and motive of the act is not so clear. There is evidence tending strongly to show that at the time the cow was shot she was in defendant’s field or inclosure. She was found dead near his fence, outside of his inclosure, but it was in evidence by a witness who saw the shooting that she was inside the inclosure when she was shot. The fence around defendant’s inclosure was not a lawful fence.
This prosecution was had, and the conviction obtained, under article 680 of the Penal Code, the charge of the court having reference to that article alone. The defendant asked the following special instruction which was refused by the court, viz.: “ If you believe from the evidence that the cow charged to have been killed
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was killed in the field of the defendant, you cannot find him guilty under this prosecution.” It was error to refuse this charge. If the cow was killed within the defendant’s inclosure, and there was an insufficient fence around his inclosure, the act of killing constituted another and entirely distinct offense from that defined in article 680. If the killing was inside the inclosure the defendant could only be prosecuted and convicted under article 685 of the Penal Code, and the information should have alleged the facts which constituted the offense defined by that article. This offense is not included in the offense defined by article 680, but is a distinct and separate offense to which is attached a different penalty. Under the evidence the issue presented by the special charge quoted above should have been submitted to the jury, and if they found from the evidence that the cow was killed inside the defendant’s inclosure, they should have acquitted him, notwithstanding his fence was insufficient. Upon the state of facts of this case, the pleader should have inserted a second count in the information, charging the offense defined by article 685.
Because the court erred in refusing the special charge requested, and because this error was promptly excepted to by the defendant, the judgment is reversed and the cause is remanded.
Reversed and remanded.
[Opinion delivered October 18, 1884.]