554 CRUELTY AND MALICIOUS MISCHIEF. 



But the jury ought to be satisfied that the injury was done 

 either out of a spirit of wanton cruelty or of wicked revenge; 

 and "acting mahciously" was held not to be sufificiently de- 

 fined as "the wilfully doing of any act prohibited by law, or 

 for which the defendant has no lawful excuse." "The learned 

 judge was probably of opinion that if the mare was injured, 

 as alleged, by the discharge of a gun loaded with powder 

 and shot, that ipso facto would be conclusive proof of malice. 

 But that question, we think, should have been submitted to 

 the jury." ^^"' And the fact that the animal was trespassing 

 at the time would tend to disprove malice.^"" 



Evidence of a general scheme of poisoning the horses of a 

 neighborhood for the purpose of defrauding their owners 

 out of fees for curing them was held to be sufficient to show 

 malice.^®® Whereas, if the prisoner administered poison to 

 horses under an idea that it would improve their appearance, 

 he was not guilty of administering poison with intent to 

 kill.i^'^ But where one was indicted for poisoning horses in 

 order to prevent their running in a race, the defendant having 

 betted against them, this intent was held to constitute 

 malice."^ An indictment for wilfully and maliciously ad- 

 ministering poison to a horse, in the words of the statute, is 

 sufficient without further averment of criminal intent or of 

 injury to the horse."» And it need not be alleged that the 

 quantity of poison was suflScient to kill."*' Where the ad- 

 ministering of poison is made by statute a specific oflfense, 



""Com. V. Walden, 3 Cush. (Mass.) 558. And see State v. Allen 72- 

 N. C. 114. 



""See Thomas v. State, 30 Ark. 433, 435; Chappell v. State, 35 id. 345;, 

 Ecnnefield v. State, 62 id. 365; Lott v. State, 9 Tex. App. 206: Wright v. 

 State, 30 Ga, 325; Gaskill z'. State, 56 Ind. 550. 



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



■" Rex V. Mogg, 4 C. & P. 364. 



'™ Dawson's Case, Ms., cited in 3 Chit. Cr. L. 1087 n. 



"* Com. V. Brooks, 9 Gray (Mass.) 299. And see State v. Isaacson, 8- 

 S. D. 69. 



"° State V. La Bounty, 63 Vt. 374. where it was held that the words 

 "Paris green" sufficiently imported poison. 



