WHAT ACTS ARE PROHIBITED. 535 



by a swift, deep "throat-cut," without previously stunning the 

 animal, is not "cruelty." '*" 



The intoxication' of defendant is no defence for his 

 crttelty.^'^ But the fact that the animal was attacking or tres- 

 passing is in many cases a justification for acts that would 

 otherwise be indictable. One may use necessary means to 

 drive trespassing animals out of his land and if this results in 

 injury to them he is not guilty of cruelty or wilful or wanton 

 mischief.*^ So, one who set on his premises a steel trap 

 which caught and injured another's dog depredating", was 

 held not guilty of "needlessl)' torturing, or mutilating" the 

 animal. ''^ And where the defendant killed hogs ravaging 

 his crop in order to protect it and not from a spirit of cruelty, 

 he was held not guilty, and it was considered immaterial 

 whether he had a lawful fence or not. "The motive with 

 which the act was clone is the test as to whether it was crim- 

 inal or not." ^° On the other hand it has been held that one 

 cannot justify killing a trespassing animal unless his field was 

 properly protected against such trespass. ^^ And one who 

 pursued with dogs and killed a hog trespassing on his prem- 

 ises and injuring a growing crop was held guilty of criminal 

 trespass.*^ So it was held no defence to an indictment 

 for wounding a cow that the defendant shot her for entering 

 a field to destroy his crops at a point where the cow's owner 

 should have kept the fence in repair. "It never was the 

 law that a man might shoot and kill his neighbor's horses and 



" In re Littman, (Aberdeen Police Court), cited in 37 Sol. Jour. 818 

 and 48 Alb. L. Jour. 383. 



■'" State V. Avery, 44 N. H. 392. 



"Avery v. Peo., 11 III. App. 332- See also § 45, supra. 



""Hodge V. State, 11 Lea (Tenn.) 528. 



"■ Stephens z>. State, 65 Miss. 329. As to fencing against trespassing an- 

 mals, see §§ 70-73, supra. 



"" Jones V. State, 3 Tex. App. 228; Davis v. State, 12 id. 11. 



"■' Thompson v. State, 67 Ala. 106. But see McMahan v. State, 29 Tex. 

 App. 348; Brewer i'. State, 28 id. 565. 



