Street v. State

Citations

• 7 Tex. Ct. App. 5

Syllabus

<p>1. Malicious Mischief. — By art. 713 of the original Penal Code, the punishment for the wilful killing, etc., of. certain animals, with intent to injure the owner, was by fine of not less than three nor more than ten times the amount of the injury done the owner. Under this article defendant was charged with the killing of twenty-five hogs, worth $60, to the owner’s injury $60. Held, that the measure of the punishment being regulated by the injury to the owner, and not by the value of the animals, the State was not bound to prove the killing of the entire number of animals alleged in the information, but only of so many as warranted the jury in fixing the fine at the amount assessed in their verdict.</p> <p>2. Same — Practice—Evidence.— Qucere, whether the right of election obtains in misdemeanors. But when a misdemeanor indictment contains but one count, and it covers a single transaction only, but the evidence tends to prove more than one transaction, the proper practice is for the defence to move the court to exclude all evidence except such as conduces to the proof of a single offence. If, however, as in the present case, the motive or intent of the defendant be a substantive element of the offence charged, evidence which tends to show such motive or intent is competent, notwithstanding it develops other offences.</p> <p>3. Same. —A conviction will not be set aside on account of an erroneous ruling on a mere question of practice, when it is apparent that the defendant was not prejudiced thereby.</p> <p>4. Practice in this Court. — The charge of the court below is construed in its entirety, and not tested by the abstract accuracy of each clause.</p>