It clearly appears from the evidence that, at the time defendant shot the horse, said horse was violently attacking and endangering defendant’s horse. The appearances indicated that, unless prevented in some way, defendant’s horse would be either killed or seriously injured by the attacking horse. To prevent such a result, the defendant shot and wounded the attacking horse.
It is well settled law that if an animal be killed or injured by a person, in the necessary protection of such person’s property, after he had ineffectually used ordinary care to otherwise protect such property, such killing or injury will not be deemed either wilful or wanton, within the meaning of the Penal Code. (Thomas v. The State, 14 Texas Ct. App., 200; Lane v. The State, 16 Texas Ct. App., 172.)
In this case, the charge is, that the defendant wilfully shot and wounded the horse. To warrant his conviction, the evidence must show, not only that he shot and wounded the horse, but that in doing so, he was actuated by evil intent, or legal malice, or without reasonable ground for believing the act to be lawful. We think the evidence fails to show that the act was wilfully committed.
There are several supposed errors complained of in the charge of the court, which we shall not take time to discuss. We will merely say in relation to the charge of the court that, in our *426opinion, it does not fairly and correctly present the law applicable to the evidence. It is too restricted in the definition of the term “wilful,” and it erroneously makes the guilt or innocence of the defendant depend upon whether or not he used greater force than was necessary in the protection of his property. This issue was not in the case, except in so far as it might be considered by the jury in determining the real issue, which was, did the defendant commit the act wilfully? It was for the jury to say, from all the evidence, not whether the defendant used more force than was necessary, but did he use the force toilfully, within the meaning of that term as used in defining the offense with which he was charged. We are further of the opinion that the special charge requested by the defendant, to the effect that if it reasonably appeared to the defendant that his horse was in danger of serious injury, and he inflicted the wound upon the attacking horse to protect his own horse from the threatened injury, defendant should be acquitted, should, under the facts in this case, have been given.
Opinion delivered June 2, 1886.For the reasons we have stated, we hold the conviction in this case to be wrong, and the judgment is reversed and the cause remanded.
Reversed and remanded.