PROOF OP MALICE ; INDICTMENT. 553 



alty and the fact that by the preamble to the first-named act 

 the offense seems to be pointed at such as committed it for 

 motives of mahce against the owner, the EngUsh decisions 

 only went to the extent of holding that there could be no 

 conviction where, upon the face of the transaction itself, the 

 motive for the act could be imputed only to resentment or 

 anger against the particular animal. In all other cases, the 

 question of malice was to be left to the jury to be determined 

 by the testimony. Having borrowed the English statute, 

 we accept the above as the proper construction to be given 

 to our statute on this point. We are aware that the decisions 

 in some of the States seem to go further than this, but we 

 decline to follow them." ^^^ 



In an Alabama case it was said: "It is not indispensable 

 to a conviction that the defendant did or said anything, either 

 before or after the commission of the act, indicative of express 

 malice towards the owner. Malice may be inferred, if the 

 injury is unlawful, from the instrument used or the wantonness 

 of the deed, and from any attendant circumstances which 

 would justify the inference in other crimes where malice is an 

 essential constituent." ^^^ And in an Iowa case, the court 

 said: "If the act was wilful and wanton, the defendant in- 

 tended to inflict an unnecessary and inexcusable injury upon 

 the owner, and his malice embraces both the animal and the 

 owner." *" 



The fact, therefore, that the defendant did not know who 

 the owner was does not show a lack of malice.^ ^^ Nor does 

 the fact that the defendant was intoxicated at the time.'^^ 



"' Brown v. State, 26 O. St. 176. 



The Black Act is not in force in Georgia: State v. Campbell, Charlton, 

 T. U. P. (Ga.), 166. 



"" Hobson V. State, 44 Ala. 380. And see Hill v. State, 43 id. 335. 



'"' State V. Williamson, 68 la. 351. And see Reg. v. Tivey, i C. & K. 

 704; Ty. V. Crozier, 6 Dak. 8; State v. Avery, 44 N. H. 392. 



'Teo. V. Olsen, 6 Utah 284; State v. Linde, S4 la. 139; State v. 

 Phipps, 95 id. 491. 



"^ State V. Avery, 44 N. H. 392. 



