536 CRUELTY AND MALICIOUS MISCHIEF. 



COWS for a trespass upon his crops." ®^ "And the need- 

 less killing of chickens though done without torture is 

 cruelty under the North Carolina code, and it is no defence 

 that they were destroying peas in the garden of the defend- 

 ant's father."* But in a Texas case it is said : "A trespass 

 may be wilful without being wanton, according to the inten- 

 tion. . . It may be done under such circumstances as 

 negative a wanton act, as where an animal is in the habit 

 of trespassing on a man's crop and is killed during an act of 



iirespass, not from wantonness, but to prevent the destruction 

 of his crop. In that case he might be liable to a civil suit for 

 damages, but not to a criminal prosecution for malicious mis- 

 chief. . . . This would not apply to a case where the crop 

 was not properly protected against trespass by stock." ®^ 

 Where a cow strayed into the defendant's unenclosed field 

 and he set his dogs to drive her out and, after she came out 



■on the public road, they bit and injured her, he was held 

 guilty of wilfully and unlawfully abusing another's cattle in an 



' enclosure not surrounded by a lawful fence.®* 



One does not wilfully or wantonly injure or kill an animal 



•who does it to protect his own animal that is being 

 attacked. "'^ And where the defendant saw his father's sheep 



^Tunning at full speed and a number of hounds behind them, 

 and shot one of the hounds, thinking the sheep were in 



■ danger, whereas the hounds were in fact following a fox trail 



; leading across the pasture and had no designs on the sheep, 



•=■ State V. Butts, 92 N. C. 784. But see Reedy v. State, 22 Tex. App. 

 -.271 ; State v. Landreth, 2 N. C. Law Repos. 446. 



" State V. Neal, 120 N. C. 613. ■« Branch v. State, 41 Tex. 622. 



"" State V. Godfrey, 97 N. C. 507. 



"Thomas v. State, 14 Tex. App. 200; Lane v. State, 16 id. 172; Farmer 

 -V. State. 21 id. 423, where it is said: "It is well settled law that if an 

 animal be killed or injured by a person in the necessary protection of such 

 person's property, after he had ineffectually used ordinary care to other- 

 wise protect such property, such killing or injuring will not be deemed 

 either wilful or wanton, within the meaning of the Penal Code." And 

 see Cornelius z: Grant, 7 Rettie (Sc. Ct. Justic.) 13. 



