The New Jersey criminal statute makes the willful or malicious killing of any domestic animal a crime, punishable by fine not exceeding one hundred and fifty dollars, or imprisonment at hard labor not exceeding two years, or both.1 The statutes of New York make a misdemeanor of the malicious killing or maiming of any animal, the property of another, and visit with heavy penalties the crime of poisoning animals, the property of another, to wit: imprisonment in the State prison for a term of not more than three years, or in a county jail for not more than one year, or by a fine of not more than two hundred and fifty dollars, or by both fine and imprisonment.2 § 203. Criminal law as to malicious injury to animals. -In Pennsylvania, it is provided, by statute, that he who shall willfully kill, maim, or disfigure, or administer poison to any domestic animal, not his own, shall be guilty of a misdemeanor, and be punished by fine not exceeding five hundred dollars, or imprisonment not more than three years.3 In North Carolina, such malicious mischief is made a misdemeanor, and punished accordingly.4 In Ohio, the value of the animal is made a standard as to the gravity of the offense; to willfully kill an animal, the property of another, is by statute made a misdemeanor; if the animal's value is as much as thirty-five dollars, the penalty is imprisonment not more than three years nor less than one; if the beast is worth less than thirty-five dollars, then the penalty imposed is a fine of not more than two hundred or less than five, or imprisonment not exceeding three months, or both fine and imprisonment. But an exception from the operation of the statute is made in the case where the animals are trespassing on the inclosure of the person who kills or maims them; or where the injury to the beasts is to prevent them from trespassing.5 ute applies to "cattle" alone, but the term would probably be construed to include all domestic animals. (Commonwealth v. Falvey, 108 Mass. 304.) 1 Nixon's Digest Laws of New Jersey, p. 205, Sec. 70. 2 Penal Code of New York, p. 259, Secs. 698, 699. Purden's Digest, by Brightly, p. 242, Sec. 163. 4 Revised Code of North Carolina, p. 223, Sec. 104. Revised Stats. of Ohio, Swan & Critchfield, Vol. 1, p. 74, Secs. 23-25. In the statute law of Tennessee, to willfully and maliciously kill, maim, or poison a domestic animal, worth less than ten dollars, the property of another, is made punishable by a fine, and imprisonment in the county jail not exceeding three months, and payment to the owner of the value of the animal; such offense against an animal worth more than ten dollars, is punishable by imprisonment in the penitentiary not less than one nor more than five years, and the owner of the beast shall also have awarded to him its value, and such award the culprit must pay.1 § 204. Statutes as to malicious injury to animals.— Texas statute law makes it a crime to willfully kill, maim, disfigure, or poison a domestic animal owned by another person, and makes the offense punishable by fine, not less than thrice or more than ten times the amount of injury done.2 In Vermont, the statute provides that every person who shall maliciously and willfully maim, disfigure, poison, or kill any domestic animal, which does not belong to him, shall be punished by imprisonment in the State prison not more than five years, or by fine not exceeding five hundred dollars, or by both fine and imprisonment.3 In Wisconsin, this offense is, by the statute as to crimes, made punishable by imprisonment not less than three months nor more than two years, or by fine not less than fifty nor more than five hundred dollars; provided, that the property being less than three dollars in value, the punishment shall be a fine of not less than five nor more than fifteen dollars.4 1 Stats. of Tennessee, Compilation by Thompson & Steger, Vol. 3, p. 61, Secs. 4657, 4658. How much he may be fined, when the beast is worth less than ten dollars, the statute does not specify; and in all of thes● statutes, where the value of the animal is made the standard of punishment, there is an apparent injustice; the malice of the wrong-doer, the injury to the peace and dignity of the commonwealth, are as great when the animal is worth nine dollars as when its value is ten; in one case the culprit may be punished by imprisonment not exceeding three months; in the other, he may be incarcerated five years. In this State it has been held that malice against the owner of the animal must be charged and proved. (State v. Wilcox, 3 Yerg. 278.) 2 Laws of Texas, Paschal's Digest, p. 460, Sec. 2344. Among the domestic animals enumerated is the dog, which is not generally regarded as among the domestic animals for a malicious injury to which a criminal action, under similar statutes, will lie. 3 General Statutes of Vermont, p. 671, Sec. 26. 4 Statutes of Wisconsin, Taylor, p. 1850, Sec. 58. § 205. Construction of statutes for prevention of willful injury of animals.-Rules to be deduced from the decisions upon these statutes by the Courts of the several States are of but little general value, from the diversity presented by the laws as to the character and enormity of the offense, and the measure and mode of punishment provided. It is, however, to be deduced that the essence of the offense of malicious mischief, in injuring animals, is malice toward the owner. To constitute malicious mischief, at common law, in injuring animals, malice toward the owner is essential. Such malice must be averred and proved. It will not be inferred from a merely injurious act, such as killing the animal of another. To kill an animal is not necessarily an offense, but is only rendered one by the special circumstances. This general rule has been generally adopted in the several States as the true one, in construing these statutes.1 1 Commonwealth v. Brooks, 9 Gray, 303; The King v. Pearce, 1 Leach, 4th Ed. 527, and 2 East, P. C. 1072; Commonwealth v. Sowle, 9 Gray, 304. But an indictment need not set out the precise means used to commit the injury. (Rex v. Whitney, 1 Moody, 3; Rex v. Briggs, 1 Moody, 318; Commonwealth v. Smith, 2 Allen, 516.) State v. Newby, 64 N. H. 24. An ox was killed in winter, when, the ground being covered with snow, and no possible injury to crops could have been the motive causing his death, it was insisted that malice must be presumed. The Court did not so regard it, and decided that, "in the spoliation or destruction of property, malice toward the owner must be the inducement, in order to constitute the crime of malicious mischief at the common law. "This was not controverted by the attorney-general, but he insisted that the fact of the killing the ox being found, malice must be inferred, just as in homicide. The difference is that homicide is a crime, per se, and excuse or justification must come from the defense, or appear in the cause; but to kill an ox is not so, and, therefore, malice toward the owner must be found. It was not found in this case, and the defendant was entitled to an acquittal." State v. Jackson, 12 Ire. 329; State v. Latham, 13 Ire. 33; Northcote v. State, 43 Ala. 334. "Malice is the gravamen of this offense, and it must be malice to the owner. If the injury was inflicted without any malice to the owner, it is a mere trespass, and not malicious mischief." (Johnson v. State, 37 Ala. 457; Pierce v. State, 7 Ala. 728.) The converse of this proposition is held in Wallace v. The State, (30 Tex. 758) in which it was held that it was not necessary to prove malice on the part of the accused; that it was enough to show that the act was willfully done; that, "in contemplation of the penal law, the willful killing of the hogs, with this intent, was the gravamen of the charge, and in that act the offense was complete against society." (P. 759.) An examination of the law of Texas, however, shows that statute to differ materially from those of the other States. The language of this act is that he who shall willfully maim, kill, etc.; the language, generally, of the statutes is willfully and maliciously. § 206. The definition of malice, at criminal law, is the doing a wrongful act intentionally, without just cause or excuse; but, in this class of action, the general definition does not strictly apply. The word "malicious" is not, in prosecutions for malicious mischief, sufficiently defined as the willful doing of any act prohibited by law, and for which the defendant has no lawful excuse. In order to convict, the jury must be satisfied that the injury was done either out of a spirit of wanton cruelty, or of wicked revenge.2 But the proof of malice being necessarily from circumstantial evidence-for the human heart is open to no man-it is the province of the jury to regard all the circumstances, and from them deduce whether or not the injury was done to the animal out of malice to the owner. In doing so, they may regard previous threats, old grudges, or circumstances denoting ill will to him whose animals have been injured; and malice may be inferred where the conduct of the accused, in injuring the beasts, will admit of no other interpretation than that he acted out of spite to the owner.3 § 207. As to what constitutes injury to animals, under the statutes against malicious injuries, much ingenuity has been manifested by those who would wreak their spite against the owner upon his unoffending beasts. The most common has been to cut off the manes or shave the tails of horses, and then, if detected, to take shelter under the proposition that such an act does not injure the animal; that such is not an injury; that it can at most be harmful only to the taste, conception of beauty, or feelings of the owner or others. But the Courts have not permitted that evasion of the law, and have held that the disfigurement of animals, so that their value as merchandise is diminished, is within the statutes "to provide for the punishment of the crime of maliciously killing and injuring horses and other animals." 4 1 Maynard v. F. F. Ins. Co. 34 Cal. 48; Bouvier's Law Dic. Vol. 1, 91. 2 Bouv. Law Dic. Vol. 1, p. 92, "Malicious Mischief"; Jacob's Law Dic. "Mischief, Malicious"; Allison Scotch Law, 448. 8 Ph. on Ev. marginal page 572. 4 Oviatt v. The State, 19 Ohio St. R. 576; Boyd v. The State, 2 Humph. 39. CHAPTER XIX. FENCES. § 208. The use of fences to protect crops. $209. Common-law rule: he who keeps cattle must fence. § 211. § 212. § 213. § 214. In some of the States this rule never obtained. § 216. Prescription to fence at common law. § 208. The use of fences to protect crops.-In natural sequence to consideration of the laws which control, and legal principles which apply to, the business of raising and keeping domestic animals, comes an examination of the laws in relation to fences, to determine the relative position of the parties who keep live-stock, and those who raise crops. While fences have a manifest value as boundaries and landmarks, it is clear that the chief function of that important feature of the farm is to protect crops from the ravages of domestic animals. From the circumstance that the business of agriculture is necessarily carried on in the same vicinity with that of keeping live-stock, it has resulted that much litigation has been had between the parties engaged in these two callings, because of the propensity of animals to trespass upon crops; and special legislation has been frequently resorted to for the purpose of establishing and maintaining in due legal relation these two lines of business, and to harmonize the rights of the farmer to raise crops, and the stock-raiser to keep animals. § 209. Common-law rule: one who keeps cattle must fence them in; he who raises crops need not fence them out. The use of fences, under the rule of the common law, is to |