
    The State vs. Wilcox.
    To constitute the offence of malicious mischief under the act of 1803, ch. 9, malice against the owner, and not towards the animal, is required.
    The defendant was indicted for maliciously killing several steers, the property of A. G. and R. Goodlett. The jury found specially, that “if malice against the owner, was necessary to constitute this a malicious killing within the statute of 1803, ch. 9, then they found the defendant not guilty; but if malice against the animal only is necessary, then they found the defendant guilty.” The circuit court entered up judgment on this finding in favor of the defendant, from which judgment the attorney general prosecuted an appeal in the nature of a writ of error to this court.
    
      A. Hays, (Attorney General) contended,
    that the true construction of the act of 1803, ch. 9, embraced this case. The word maliciously, was general, and applied to a case when the malice was against the animal as well as against the owner; that in England the construction of 9 Geo. I, ch. 22, was different, but that statute was so severe in its penalties, that the courts resorted to this shift to avoid it.
    
      G. S. Yerger, contra,
    cited Russell on Crimes, 1683, 1684. 2 East P. Crown, 1056,1062, as settling what the construction of this act ought to be.
   Catron, Ch. J.

delivered the opinion of the court.

The statute of 9 George I, ch. 22, is an extension of the act of 22 and 23 Charles II, ch. 7, and to be construed like it. Russell on Crimes, 1683, 1684. It is settled in England, that to bring a case within the statute 9 George I, there must be malice directed against the owner of the cattle which is wounded or killed, ar^d not merely against the animal itself. Why was it so construed? Because the statute of Charles recites, that whereas divers evil disposed persons, intending the ruin and impoverishment of their fellow subjects, had frequently practised wicked courses by burning stacks, and cutting, maiming, wounding and killing horses, sheep beasts and other cattle. The offences are declared felonies. Malice to the owner induced the crimes intended to be suppressed. No other fair construction could be given to the recited British statutes. 2 E. P. Crown, 1056, 1062. Does our act of 1803, ch. 9, contemplate the same malicious intent to injure the owner? It provides, “that if any person shall cut out the tongue, cut off an ear, or tail, &c. of any beast maliciously, or of purpose, or shall wilfully and maliciously kill, &c. a beast of another, he shall be fined not exceeding ‡200, and be imprisoned not exceeding three months.” The obvious intent of our act is the punishment of malice towards the owner.

Judgment affirmed.  