
    Miles Oviatt v. The State of Ohio.
    1. For a person to wilfully and maliciously injure a horse, the property of another, to the amount of seventy-five dollars, hy cutting off his mane close to the sMn, and his tail as close to the dock as the hair could be cut, when the horse was not trespassing in any close of the person committing the injury, is an offence within the meaning of the act of April 15, 1857, ‘ ‘ to provide for the more adequate punishment of the crime of maliciously killing and injuring horses and other animals.” S. & C. 74.
    9. The refusal of the court to permit a defendant on trial for crime, and who is a witness on his own behalf, to answer a question, will not authorize a reviewing court to reverse the judgment, unless the record shows what he proposed to prove by the answer, and that it would be material.
    Error to tbe court of common pleas of Summit county.
    At the October term, 1869, of the common pleas, Oviatt was indicted for, that he, on July 10th, 1869, in Summit county, “ One horse, the property of Harvey Baldwin, then and there being, unlawfully, wilfully, and maliciously did injure to the amount of seventy-five dollars, by then and there cutting from the neck of said !horse, as close to the skin as the same could be cut and sheared, his entire mane, excepting only the roots, and about one inch in length of said mane above the skin; and also by then and there cutting and taking off nearly all .the hair,, about two feet in length, from the tail of said horse, and as close to the dock as the hair could be cut and sheared; which said horse was not then and there trespassing in any inclosnre of ” Oviatt, contrary to the statute, etc.
    Oviatt demurred to the indictment, on the ground that the facts stated in it do not constitute an offence punishable by the laws of this State. The demurrer was overruled; and Oviatt, being arraigned, pleaded not guilty, and went to trial to a jury.
    On the trial, one Chapman testified on behalf of the State that Oviatt said to witness that “ he would make it damned hot for them,” — meaning, among others, Harvey Baldwin, owner of the horse.
    Also one Miller testified, on behalf of the State, that in a conversation with Oviatt, in regard to the offence charged in the indictment, Oviatt said to witness, “ I am satisfied who did it, but will not tell ? ”
    Oviatt testified on his own behalf, and was asked this question: '“What do you mean by the words, ‘I will make it damned hot for them,’ in your conversation with Chapman ? ” And, admitting that he used the words testified to by Miller, he was asked this question: “ Why did you say to Miller, ‘ I am satisfied who did it, but will not tell ’ % ” The State objected to both these questions, and the objections were sustained, and Oviatt was not permitted to answer either question. And he excepted.
    The verdict was guilty as charged in the indictment, finding the injury to the horse to be thirty dollars.
    Oviatt moved for a new trial, on the grounds: 1. The court erred in overruling his demurrer to the indictment. 2. In refusing to allow him to answer the questions as stated. 3. The verdict is against both law and evidence.
    This motion was overruled, and the defendant was adjudged to pay a fine of seventy-five dollars and costs, and be imprisoned in the jail thirty days.
    To reverse this judgment this writ of error is prosecuted.
    
      M. O. Bead, MeOlure & Oviatt, and Hall <& TToung for plaintiff in error:
    1. The demurrer to the indictment should have been sustained. The statute which is supposed to prescribe a penalty for the offence charged in the indictment is found in S. & C. 74, 75, providing, “ That if any person shall wilfully and maliciously mj'ure any such animal,” etc.
    Does the offence described in the indictment fall within the legal signification of the word mjure, as used in the statute.
    We say that the general assembly used that word as synonymous with wounding. They did not mean a mere disfiguration, harmful only to the taste and feelings of the owner or others. They did not mean a mere temporary damage, affecting the value of the animal only for a month or six months, or perchance for a year at the farthest — the animal then to become as valuable as ever — the cause of the temporary disfiguration having, meantime, been removed; or, as in the case under consideration, the mane and tail having been restored by natural growth. See statutes of Maine, Massachusetts, Michigan, Wisconsin, Mississippi, South Carolina, and State v. Smith, Cheeves' Rep. 157.
    2. The court below erred in refusing to permit the defendant, when a witness upon the stand in his own behalf, to explain the statements which the State proved he had made.
    An essential ingredient of the offence charged against him was malice. Without establishing the existence of that element, the State must have failed. His previous declarations were competent for that purpose, as well as to prove the body of the offence. Eor that purpose they were used by the State. He was asked to explain why he made the statements, for the purpose of demonstrating that they were not conceived or uttered maliciously; and further, that they were not intended as a menace against the prosecuting witness or his property. He should have been allowed to answer these questions.
    See 1 Bishop on Crim. Law (3d ed.), 225, 236, 245, 247, 250, 275, and 276; Sedgwick on Stat. and Const. Law, title “Interpretation;” Archb. Crim. Pr. and Pl. 781 to 785 inclusive ; and the cases cited by the authors.
    
      
      J. H. Kohler, prosecuting attorney, for the State :
    1. The offence charged in the indictment is within the statute. The word injure means “ to damage or lessen the value of goods or estate.”— Webster.
    
    2. The court below properly refused to allow the defendant to explain what he rnecrnb by the statements proved to have been made by him.
   By the court

Held :

1. The demurrer to the indictment was properly overruled. The facts stated in the indictment are sufficient to constitute the offence defined in the act of April 15, 1857, “ to provide for the more adequate punishment of .the crime of maliciously killing and injuring horses and other animals (S. & C. 74), as follows: “ That if any person or persons . . . shall wilfully and maliciously injure any such animal or animals [horse, mule, etc.], the property of another, to the amount of,” etc., “ such person or persons shall, upon conviction thereof, be ” punished as prescribed in the act.

2. The refusal of the court below to permit the accused to answer the questions asked him concerning what he had said to Chapman and Miller, will not justify a reversal of the judgment, because it does not appear from the record what was proposed to be proved by the answers, had they been given. And therefore, as it does not appear but that the answers would have been immaterial, we cannot say that the accused was prejudiced by not being allowed to answer the questions. Scovern v. The State, 6 Ohio St. 288; Hollister & Smith v. Reznor, 9 Ohio St. 1; Gandolfo v. The State, 11 Ohio St. 114.

Judgment ajji/rmed.  