PKOOF OF MALICE ; INDICTMKNT. 555 



it is not punishable under another section of the code as 

 "wilful and wanton destruction of property." ^'^ 



The indictment need not charge the act to have been done 

 out of malice to a particular person, on the principle already 

 discussed; ^'^ though it has been held that the name of the 

 owner, if known, should be stated.'-'^ And even where it 

 need not be given, if it is actually stated, the proof must cor- 

 respond with the allegation. ^^* Where the injury done to the 

 owner enters into the penalty and is the element out of which 

 it springs, the amount of injury must be alleged. ^''^ 



An indictment for malicously or needlessly killing need not 

 allege the mode or circumstances of the killing.^'^ Nor need 

 the fact that the animal was killed while trespassing in an 

 enclosure having an insufficient fence be alleged.^'^ 



Where the statutory ofTense consists in the injury being 

 done "maliciously," an allegation that the defendant's act was 

 "wilful and unlawful" is not sufficient.^'® 



Under a statute punishing "wilful" or "wilful or malicious" 

 injuries, malice need not be shown. ^'* It has been held that 

 the word "feloniously" must be used, where the killing of an 

 animal is a statutory felony; i®" but that the act need not be 



"' Peo. V. Knatt, 156 N. Y. 302. 



'"State V. Scott, 2 Dev. & Bat. L. (N. C.) 35; State v. Hambleton, 

 22 Mo. 452. See State v. Hill, 79 N. C. 656; State v. Pierce, 7 Ala. N. 

 S. 728; Thompson v. State, 51 Miss. 353. 



By Stat. 24 & 25 Vict. c. 97 s. 60, an intent to injure particular per- 

 sons need not be stated in the indictment. 



'"State V. Deal, 92 N. C. 802; State v. Pierce, supra; State v. Smith, 

 21 Tex. 748; State v. Jackson, 7 Ind. 270. See 2 Bish. New Crim. Proc. 

 §§ 838-846. 



"* McLaurine v. State, 28 Tex. App. 53°. 



'" State V. Heath, 41 Tex. 426. 



""State V. Greenlees, 41 Ark. 353; Com. v. Sowle, 9 Gray (Mass.) 304. 

 See State v. Jackson, 7 Ind.>270. 



'" Dean v. State, 37 Ark. 57. See Gerdes v. State (Tex. Cr.), 34 S. W. 

 Rep. 268. 



'"State V. Lightfoot,(Ia.), 78 N. W. Rep. 41- 



"• Wallace v. State, 30 Tex. 758; Johnson v. State, 37 Ala. 457- 



"° State V. McCarron, 51 Mo. 26. 



