Achterberg v. State , 8 Tex. Ct. App. 463 ( 1880 )

Clark, J.

The venue of the offence charged, though not established beyond a reasonable doubt, perhaps, is sufficiently shown by the evidence to obviate all legal objection. The owner of the injured animal testified that he was at his cow-pen, which was in Guadalupe County, and saw his cows in the field of the defendant’s father, and while in process of removing them the defendant committed the act for which he was on trial. It is true, the field is not shown expressly to have been in Guadalupe County, but that is a reasonable if not a necessary inference from the facts testified to, and fully authorized a finding to that effect. The reasonable doubt does not apply to the merely jurisdictional fact of venue. Deggs v. The State, 7 Texas Ct. App. 359; Barara v. The State, 42 Texas, 260.

The charge of the court, in its first paragraph, is liable to criticism, and if excepted to upon trial and a correct instruction tendered, would have constituted cause for reversal. It is not an offence to wilfully kill, maim, wound, poison, or cruelly and unmercifully hurt or abuse “ any animal,” as stated in the charge, but such acts are offences when committed upon “ any domesticated animal.” Penal Code, arts. 679, 680. In view of the charge in the information, and the evidence before the jury, the inaccuracy complained of could not have prejudicially affected the appellant, and the charge, not having been excepted to, cannot be urged here with effect. Hobbs v. The State, 7 Texas Ct. App. 117.

The court properly instructed the jury to disregard the plea of a former acquittal before the justice of the peace. The penalty for the offence for which appellant was upon trial placed the prosecution beyond the jurisdiction of that tribunal, and there seems to have been no pretence that the former trial was upon an information. In that event, the law is imperative that no bar shall obtain. Code Cr. Proc., art. 553; Allen v. The State, 7 Texas Ct. App. 298.

The evidence fully supports the verdict, and shows a wanton shooting of another’s cow, without just cause or excuse so far as appears from the record ; and the judgment is affirmed.

Affirmed.