Under the statute, it has been held to be incumbent on the State to prove actual malice toward the owner of the animals, on the part of the offender.1

In California, the law is such that poisoning animals, the property of another, or maliciously exposing any poisonous substance with the intent that the same shall be taken or swallowed by any such animal, is punishable by imprisonment in the State prison not exceeding three years, or in the county jail not exceeding one year, and a fine not exceeding $500. And every person who maliciously kills, maims, or wounds an animal, the property of another, is guilty of a misdemeanor.2

§ 198. Laws in Georgia as to malicious injury to animals. In the State of Georgia, the statute law is such that if any person shall maliciously maim or kill any horse, mule, bull, steer, ox, cow, calf, heifer, or shall maliciously kill a hog or hogs, such person shall, upon conviction, be punished by a fine not to exceed $1,000; imprisonment not to exceed six months; to work in a chain-gang upon the public works not to exceed twelve months and any one or more of these punishments may be ordered, in the discretion of the judge. "Provided, that when the person killing or maiming such animal or animals shall, upon the trial therefor, set up as a defense that such killing or maiming had been done, not from malice toward the owner of said animal or animals, but to prevent injury to defendant's growing

1 Sec. 3733, Revised Code of Alabama; Penal Code, Sec. 186. The real essence of this offense is malice toward the owner of the animal injured. (Northcot v. The State, 43 Ala. 330; Hill . The State, 43 Ala. 335; State v. Pierce, 7 Ala. 728.) There is, however, an apparent contradiction in the decisions. In Johnson v. The State, 27 Ala. 459, Walker, C. J., in delivering the opinion, said: “Under the statute now under consideration, the willful performance of the specified acts, as well as the malicious performance of them, constitutes the offense. It was, therefore, proper for the Court to charge the jury that proof of malice toward the mule or its owner was not indispensable."

A later decision, Hobson v. The State, 44 Ala. June term, 1870; indictment for killing a hog. Defendant prayed an instruction, to the effect that it is incumbent to prove that the defendant killed or wounded the animal both unlawfully and maliciously; and unless the jury are satisfied beyond a reasonable doubt that the defendant had malice against the owner of the hog, they must acquit. The instruction was refused, and the case went up on appeal on this point. Held, that the refusal to grant the instruction was error; that malice toward the owner is an essential ingredient of the offense of malicious injury to animals.

2 Penal Code of California, Secs. 596-7.

or matured crops, or other property, such defense shall not avail to acquit the defendant, unless it shall be made clearly to appear, before the Court trying the same, that such growing or matured crops, or other property, was protected by a substantial fence, not less than four and a half feet high." 1

§ 199. Statutes concerning malicious injury to animals. -In Illinois, by statute provision, every person who shall unlawfully, wantonly, willfully, or maliciously kill, wound, disfigure, or destroy any horse, dog, or other useful or domestic animal, the property of another, on conviction shall be fined not exceeding one hundred dollars, or imprisoned not exceeding three months, or both.2

Under this statute, it has been held that a party may be convicted of malicious mischief in wounding an animal while trespassing in his field; that the fact that the animal was doing damage does not justify wounding or injuring it.3

In Iowa, the statute provides that if any person maliciously kill, maim, or disfigure "any domestic beast of another," or maliciously poisons any such animal, or exposes any poisonous substance with the intent that the same shall be taken by them, he shall be punished by imprisonment in the county jail not

1 Code of Georgia, 1873, by Irwin, Lester, and Hill, Secs. 4310 and 4612. Upon these statutory provisions, it has been held, in Georgia, that to constitute malicious mischief it is not necessary to prove actual ill-will or resentment against the owner of the animals. "If the act be done wantonly and recklessly, or under circumstances which bespeak a mind prompt and disposed to the commission of mischief, it is sufficient." (Mosely v. The State, 28 Ga. 190.)

Where a party was on trial for shooting a mule, he was permitted to rebut the presumption of malice by showing that he killed the animal to protect his crop-it appearing that the mule was in defendant's corn-field; that he was a mischievous animal, and was hard to restrain from trespassing. (Wright v. The State, 30 Ga. 325.)

2 Illinois Criminal Code, p. 81, Sec. 269.

8 Snap r. The People, 19 Ill. 80. A mare was trespassing in a field of oats, protected by a sufficient fence; the owner of the field directed his hired man to shoot her, which he did-in the flank, with fine shot-thereby injuring the animal temporarily; the master and servant were indicted, and convicted. On appeal, the judgment was affirmed.

Caton, C. J., in delivering the opinion of the Court, said: "It is a violation of the common law, as well as of the statute, for a person to shoot or wound stock found trespassing on his premises. He may expel them, and use the necessary force for that purpose, doing them no unnecessary damage; or he may take them up, damage feasant; but the law of right, as well as of humanity, forbids him to inflict an unnecessary injury upon the brute."

exceeding one year, or by fine not exceeding three hundred dollars.1

§ 200. State laws as to injury of domestic animals.— In Kansas, the provisions of the statute law are such that any person who shall maliciously wound, maim, or poison the domestic animal of another, shall, on conviction, be punished by confinement and hard labor not exceeding three years, or imprisonment in the county jail not less than twelve months.2

In Kentucky, there is a statute law providing that, "if any person shall willfully kill, disfigure, or maim any horse, cow, mule, jack, or jennet, not his own, without the consent of the owner, he shall be fined not less than ten nor more than one hundred dollars, or be imprisoned not less than one nor more than six months." 3

By the criminal statute of Louisiana, whoever shall wantonly or maliciously kill any domestic animal, the property of another, shall be fined in a sum not exceeding two hundred dollars, or be imprisoned not exceeding six months, and shall pay to the owner of the animal killed the value thereof; whoever shall, wantonly or maliciously, cruelly beat, maim, or disable such animal, shall be fined not exceeding one hundred dollars, or be imprisoned not exceeding one month, and shall pay to the owner any damage he may sustain in consequence thereof.4

In Maine, there is a statute law as follows: "Whoever willfully or maliciously kills, wounds, maims, disfigures, or poisons any domestic animal, or exposes any poisonous substance with intent that the life of any such animal should be destroyed thereby, shall be punished by imprisonment not more than four years, or by fine not exceeding five hundred dollars.” 5

§ 201. Malicious injury of animals-Criminal laws. -The Maryland statute is to the effect that if any one willfully and maliciously kill, wound, or maim a domestic animal

1 Laws of Iowa, Revision of 1860, p. 739, Sec. 4318.

2 Genl. Statutes of Kansas, 1868, p. 337, Secs. 101, 102.

3 Revised Statutes of Kentucky, Staunton, Vol. 1, 411, Sec. 8.

4 Revised Statutes of Louisiana, 1870, p. 163, Secs. 815, 816.

5 Revised Statutes of Maine, 1871, p. 861, Sec. 1. This section might, in strict construction, prevent the owner from killing his own animals.

not his own," and not in the act of trespassing upon his inclosures, he shall undergo a confinement in the penitentiary for not less than eighteen months, or more than four years."

" 1

In Massachusetts, the criminal statute is that "whoever willfully or maliciously kills, maims, or disfigures any horses, cattle, or other beasts of another person, or willfully and maliciously administers poison to any such beasts, or exposes any poisonous substance with intent that the same shall be taken or swallowed by them, shall be punished by imprisonment in the State prison not exceeding five years, or by a fine not exceeding one thousand dollars, and imprisonment in the county jail not exceeding one year."2

It has been held, in this State, that the charge under the statute cannot be sustained, unless it be alleged and proved, to the satisfaction of the jury, that the injury was committed not only wantonly, but with malice to the owner.3

A construction of these statutes, as late as 1871, extends their operation from horses, cows, and the other quadruped animals which, from usage, have come to be known as "domestic" animals, to poultry; so that the penalties imposed by the statute are held to apply to persons convicted of having poisoned hens which did not belong to them.4

1 Maryland Code, Public General Laws, Vol. 1, p. 215, Sec. 39.

2 Genl. Statutes Mass. p. 805, Sec. 80. An indictment which charges the defenddant, in the words of the statute, with willfully and maliciously administering a certain poison to the horse of another person, is sufficient, without further averment of any criminal intent, or of any injury to the horse. (Commonwealth v. Brooks, 9 Gray, 249; Same v. Sowle, Ibid, 304.)

It is an indictable offense at common law to maliciously and willfully poison the property of another. (Commonwealth v. Leach, 1 Mass. 54.)

a cow,

3 Commonwealth v. Walden, 3 Cush. 558. "The word 'maliciously,' relating to malicious mischief, is not sufficiently defined as 'the willfully doing of any act prohibited by law, and for which the defendant had no lawful excuse.'

This was an indictment under a former statute, similar to the one now in force and given in the text, for shooting a mare. The judge in the Court below charged the jury as above, and on appeal, this charge was held error. The opinion of the higher Court was, that "the jury should have been instructed that, to authorize them to find the defendant guilty, they must be satisfied that the injury was done either out of a spirit of wanton cruelty, or wicked revenge." Malicious mischief, amounting to a crime, is so defined by Blackstone, (4 Bl. Com. 244) and in the standard works generally.

4 Commonwealth v. Mary E. Falvey, 108 Mass. 304. The lady's patience became exhausted, and deeming herself justified by the annoyance caused by her neighbor's poultry, she poisoned them; was indicted, tried, and convicted there

§ 202. Laws of several States as to injury of domestic animals.-In Michigan, the crime of maliciously and willfully poisoning, maiming, or killing horses, cattle, or other beasts of another, is by statute punishable by imprisonment in the State prison not more than five years, or by fine not exceeding one thousand dollars, and imprisonment in the county jail not more than one year.1

The statute in Minnesota provides that whoever willfully and maliciously kills, maims, or wounds any domestic animals which do not belong to him, shall, on conviction, be punished by imprisonment not more than two years or less than three months, or by fine not more than five hundred or less than fifty dollars.2 In Mississippi, by statute, it is provided that whoever shall maliciously, or out of a spirit of revenge or wanton cruelty, kill, maim, or wound any horse, etc., shall be fined not less than twenty-five or more than three hundred dollars, or be impris oned not less than three or more than six months; and if any person shall cut off or shave the tail of any horse, mare, gelding, or colt, not his own, he shall be liable to the same penalty.3

In Missouri, the criminal statute provides that every person who shall willfully kill, poison, maim, or wound any cattle of another, shall be punished, on conviction, by imprisonment not less than six months or more than three years, or fine not less than two hundred and fifty dollars; or by fine not less than one hundred dollars, and imprisonment in the county jail not less than three months.4

for, under the statute cited. On appeal from the judgment of conviction, the rulings of the lower Court, on which the conviction was had, were sustained. The Supreme Judicial Court of Massachusetts say: "The construction contended for by the defendant would require us to hold that the statute legalizes the use of poison for the willful and malicious destruction of any personal property of another, not included under the description of 'horses, cattle, or other beasts.' It is impossible to believe that such could have been the purpose of the statutes."

1 Compiled Laws Michigan, Vol. 2, p. 2088, Sec. 7596.

2 Statutes at Large of Minnesota, 1873, p. 1000, Sec. 108. By a recent decision (Judson v. Reardon, 16 Minn. 431 et seq.) a definition of malice is given, apparently in conflict with Commonwealth v. Walden, 3 Cush. 558.

Here it is held that, "from the willful doing of an injurious act, without lawful excuse, the law implies malice, and this, though the defendant supposed he was acting in conformity to law."

3 Statute Laws of Mississippi; Howard v. Hutchinson, p. 673, Sec. 44.

4 Statutes of Missouri, 1870, (Wagner) p. 462, Secs. 54, 55. Strictly, this stat