Trice v. State , 17 Tex. Ct. App. 43 ( 1884 )

White, Presiding Judge.

Under article 405 of the Penal Code, with regard to the wilful obstruction of a public road, the intent — that is, the fact whether the act was wilfully done—-is the gist of the offense. (Brinkoeter v. The State, 14 Texas Ct. App., 67.) When the word wilful is used in a penal statute to characterize the forbidden act, it means evil intent or legal malice, or without reasonable ground to believe the act to be lawful; and the court charging a jury upon a case involving this question, should, as an essential part of the law of the case, instruct the jury in the legal meaning of the term wilful. (Thomas v. The State, 14 Texas Ct. App., 200; Shubert V. The State, 16 Texas Ct. App., 645.)

In this particular the charge of the court in the case in hand is radically defective. In our opinion, the evidence on which this conviction rests fails to show an evil intent on the part of appellant, and is therefore insufficient to support the verdict and judgment.

The judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered October 18, 1884.]