¶1It is charged in the indictment that the defendant, jointly with another, wilfully and wantonly shot and killed a mare and a mule, the property of one Fulwiler. The indictment charges the offense defined by article 680 of the Penal Code, and of this offense the defendant was convicted. The evidence, however, shows conclusively that the animals were shot in an inclosure of cleared and cultivated land, which was at the time in charge of the defendant. In other words, the evidence shows that the particular offense committed by the defendant was that defined by article 685 of the Penal Code.
¶2In Payne v. The State, 17 Texas Ct. App., 40, we held that under an indictment charging the offense defined in article 680, the defendant could not be convicted legally when the evidence proved that, if guilty of any offense, it ivas that defined by article 685. That decision we still believe to be correct, and it is decisive of this case; wherefore the judgment is reversed and the cause is remanded.
¶3Reversed and remanded.
¶4[Opinion delivered June 3, 1885.]