
    George Brown v. The State of Ohio.
    1. Testimony otherwise competent as tending to prove the offense charged in the indictment, is not rendered incompetent hy reason of the fact that it also tends to prove a separate and distinct offense.
    2. Under the act of April 15, 1857 (S. & O. 74), in order to prove the offense of unlawfully, willfully, and maliciously injuring a horse, where it is made to appear that the act charged was cruel and seriously injurious' to the animal, and was done willfully and deliberately for the purpose of gain, it is not necessary to show that the offense was committed from' motives of personal malice or ill will toward the owner
    Error to the Court of Common Pleas of Ashtabula county.
    The plaintiff in error was indicted under the first section of the act of April 15, 1857 (S. & C. 74), which l’eads as follows: “ That if any person or persons shall willfully and maliciously kill or destroy any horse, mare, foal, filly, mule, ass, goat, sheep, cow, ox, steer, bull, heifer, or swine, the property of another or others, of the value of thirty-five dollars or upward, or shall willfully and maliciously injure any such animal or animals, the property of another or others, to the amount of thirty-five dollars or upward, the person or persons so offending shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be imprisoned in the penitentiary and kept at hard labor not more than three years nor less than one year.”
    The indictment contains four counts, the first of which, omitting the formal parts, charges that “ George Brown, late, etc., on, etc., in, etc., unlawfully, knowingly, willfully, maliciously, and feloniously, did injure a certain mare, the property of Hiram Lake and Hiram J udson, to the amount of thirty-five dollars and upward in the value thereof—to-wit, to the amount of one hundred dollars in the value thereof-—by then and there injecting into the sides of said mare, near the shoulders of the said mare, by means of a certain syringe, which said syringe he, the said George Brown, then and there had and held, a large quantity of some poisonous substance, to wit, one ounce of said poisonous substance, the name of which poisonous substance is to the jurors of the grand jury unknown, which said niare was of the value of one hundred and fifty dollars before- and until said injury; contrary,” etc.
    The other counts are in substance the same. After the testimony was closed, the counsel for the defendant be~ low requested the court to give to the jury several special instructions, of which the following is the substance: In order to constitute the offense charged in the indictment, it must be proven that the defendant committed the alleged injury maliciously, and that the element of cruelty, in addition to malice, does not essentially affect the character of the alleged act; that malice, passion, or anger toward the animal injured does not make the injury criminal unless there existed personal malice toward the owner, and the latter is the gist of the offense.
    Which special instructions the court refused to give as requested, but on this point did charge the jury in these words: “ If you find from the evidence that the injury was a serious one, and was inflicted by the defendant; that it was a wanton and cruel act and done by the defendant for the purpose of gain by getting the mare to doctor, and was without any lawful excuse, then you would be warranted in finding that the injury was inflicted maliciously.” The defendant excepted to the refusal to give the special instructions as requested, and to the charge as given.
    On the trial the state introduced testimony tending to prove that within a fortnight before the animal was injured ■as alleged in the indictment, the defendant, wTho is a professional veterinary surgeon, had repeatedly announced to many persons that a new epidemic horse disease, of which he gave a particular description, was raging at Buffalo, where he had been and treated it successfully; that the ■disease had reached Ashtabula and Akron, and would reach Conneaut in a few days, and nearly all the horses would have it, etc. That about the same time that the animal mentioned in the indictment was discovered to be ailing, a number of other horses in the same village were found to be affected in the same way; all of which the defendant had seen, examined, and declared to have the new disease which he had been predicting was coming. "Whereupon the court permitted the state, against the defendant’s ■objections, to introduce testimony tending to prove that the mare mentioned in the indictment, and the other horses above indicated, were each afflicted with a-swelling on one or both sides immediately back of the shoulders, and that in each instance the center of the swollen parts had been punctured with a sharp-pointed instrument. To all of which testimony in reference to horses, other than the one mentioned in the indictment, the defendant excepted:
    A motion for a new trial was overruled, to which the ■defendant excepted.
    Quite a number of errors are assigned on the record, of which only the following will be particularly noticed.
    1. That the court erred in admitting testimony in reference to injuries inflicted on horses other than the one mentioned in the indictment.
    2. That the court erred in refusing to charge the jury as requested, and in the charge given.
    
      L. S. Sherman, with whom was Hall $ Kellogg, for plaintiff' in error:
    The state was permitted to introduce evidence of other distinct and independent offenses to procure the conviction of the defendant. This was the design and purpose of the evidence. It could have no other animus.
    This is in violation of the rules of the criminal law, and ■compels the prisoner to meet on his trial any number of felonies. 1 Wharton Grim. Law, 648; Farrer v. The State, 2 Ohio St. 55; Shaffner v. Commonwealth, 72 Penn. St. 60.
    The court erred in refusing to charge the jury that they must find from the proof that the defendant did the alleged injury with malice toward the owner of the property. 2 Cooley’s Blackstone, book 4, p. 243; 2 Bishop Crim. Law (5 ed.), 996; Bishop on Statutory Crimes, 434,437; 3 Cush. 558; 12 Ired. 329; 13 lb. 53; 7 Ala. 728; 10 Iowa, 115 ; 1 Bishop on Crim. Law, 596; 1 Minn. 293.
    
      F. C. Wade, prosecuting attorney, for the state:
    That testimony tends to prove another crime is not objectionable on that account, if it tended to prove the crime charged in the indictment. 3 Parker’s Crim. 681; 1 Wharton Am. Grim. Law, sec. 650; Collins’ case, 4 Rogers’ Rec. 143; 1 Camp. 399; 1 Ar ebb old’s Crim. P. & P. 397, note; 1 Johns. 199; 2 Johns. Cases, 193; 2 Hay’s Cases, 205; 2 Ohio St. 500.
    The court was right in refusing to charge, as requested, upon the subject of malice.
    The defendant was indicted for a statutory offense. The wording of the statute is: “ If any person or persons shall willfully and maliciously injure any such animal or animals,” etc.
    The statute defining arson is : “ That if any person shall willfully and maliciously burn,” etc. Must a person, in order to be guilty of a crime in burning buildings, have a particular malice toward the owner of such building ?
    Ho the statutes in relation to trees, fruits, etc., use the words “ willfully and maliciously ? ” Are arson and cutting, or stealing timber, any less “malicious mischiefs” than injuring animals ?
    If there must be a particular malice toward the owner of the property in the one ease, then there must be in the others, in order to make out a crime. If such a doctrine is to be sanctioned, then a man would be safe to commit the worst of crimes, simply because he had gone among strangers, and did not know the individuals he was injuring.
   Gtlmore, J.

But two or three of the many errors assigned ■ on the record present questions worthy of particular notice.

First. It is shown that the court permitted the state to introduce testimony tending to prove that Lake and Judson’s mare, for injuring which the defendant stood indicted, was afflicted with a swelling on each side, immediately back of the shoulders, and that the center of the swollen parts had been punctured with a sharp-pointed instrument, such as the use of a hypodermic syringe would occasion.

The state was further allowed to introduce testimony tending to show that at or about the same time, in the same village, a number of other horses were afflicted and injured in substantially the same manner as Lake and Jud~ -.son’s mare. The defendant below objected and excepted to the testimony as to inj uries to other horses, on the ground that they were separate and distinct offenses from that for which the defendant was indicted, and was in effect putting him on trial for separate and distinct offenses at the same time.

It is proper to say that the theory upon which the state proceeded in the trial was, that the defendant inflicted the injury on Lake and Judson’s mare for the purpose of making money, by getting the mare to treat professionally for the cure of the injury. It was shown that the defendant had, shortly before the alleged injury was committed, been repeatedly predicting that a new epidemic horse disease, which he was thoroughly competent to treat and cure, was surely coming, and nearly all the horses would have it. lie had seen and examined the other horses afflicted at the same time, and declared that they were diseased in the same way as Lake and Judson’s mare, and that they were all afflicted with the new disease that he had foretold was coming.

With a view of showing that the desire and expectation of gain was the motive that prompted the defendant to commit the alleged offense, his declarations made before it was committed, and in reference to it after its commission, and also in reference to other cases of a like kind occurring at the same time, which he compai’ed to the case for which he stood indicted, were all admitted in evidence, and tended to show that, in the mind of the defendant at least, the several cases were connected, and oiiginated from the same cause.

While the general rule unquestionably is, that a distinct crime, in no way connected with that upon which the defendant stands indicted, can not be given in evidence against him on the trial, this rule is not applicable to a case in which it is clearly shown that a connection, in the mind of the defendant, must have existed between the offense charged in the indictment and others of a similar nature. When such connection exists, evidence of such other offense is admissible, not for the purpose of raising a-presumption of guilt on the hypothesis that a man who commits one crime will probably commit another, but for the purpose of showing a motive or purpose prompting the commission of the'offense laid in the indictment; and being competent for this purpose, it could not have been properly excluded on the ground that it tended to prove the commission of other and distinct offenses.

Second. It is claimed that the court erred in refusing to give to the jury the special instructions requested by the defendant.

The instructions requested, are all substantially embraced in this proposition : That in order to constitute the offense charged in the indictment, it must be proved that the defendant committed the alleged injury by reason of personal malice toward the owner of the animal.

It is well settled that at the common law, indictable malicious mischief can not be committed on any animal by reason of malice, passion, or anger toward it; and inasmuch as we have a statute in this state making cruelty to animals a punishable misdemeanor, it may be fairly argued that the statute under which the defendant is indicted, does not include cases in which it might be made to appear that the malicious mischief charged, consisted of injuries done to the animal from mere malice, resentment, or anger toward it. But it by no means follows that the offense with which the defendant is charged would not have been punishable under the English statutes, or is not punishable under our statute, as the decisions under the English statutes do not go to the extent claimed by counsel for plaintiff' in error. The most celebrated English statutes on this srrbject are those of 22 and 23 Car. 2, c. 7, and 9 Geo. 1, c. 22, commonly called the Black Act; the latter having been held to-be an extension of the former. On conviction under the latter act, the prisoner was to be “ adjudged guilty of felony without benefit of clergy.” The preamble to the first-named act was as follows : “ Whereas, divers evil-disposed persons, intending the ruin and impoverishment of their fellow-subjects,,. have devised and of late secretly in the night time, and at other times when they think their deeds are not known, frequently practiced in several parts of this kingdom unlawful and wicked courses in burning of ricks, etc., and cutting, maiming, wounding, and killing of horses, etc., for the prevention thereof,” enacts, etc. The description of the offense in our statute is substantially the same, and probably taken from the Black Act.

It will be seen that the penalty for a violation of the Black Act was so severe as to seemingly render it disproportionate to the crime, which of itself would incline the judges to give the act a construction in favor of life, where it was possible to do so.

The leading authority on the point under discussion is Pearce’s case, 2 Leach, 594, which was an indictment under the Black Act for feloniously, unlawfully, willfully, and maliciously maiming and wounding a cow.” It was held by the court that it was necessary to show that the fact was committed from some malicious motives toward the owner, and not merely from an angry and passionate disposition toward the beast itself, without any intention of thereby injuring the owner.

Shepherd’s case, 2 Leach, 609, and others are to the same effect. The key to these decisions is furnished by Mr. East, who, in speaking of the preamble above quoted, and the two acts named, by reference, says: “ The offense herein described seems by the preamble to be pointed at such as commit it from a motive of malice to the owner of the property.” 2 East’s P. C. 1063. And after quoting the statutes and noticing the cases above cited and others on the same point, he concludes the subject in these words: “ In all these cases there was reasonable evidence appearing upon the face of the transaction itself to impute the motive of the fact to resentment against the particular animals, and not to any personal malice against the owner. Bat it does not appear to have been decided that it is necessary to give express evidence of previous malice against the owner, in order to bring a case within the act; but the fact being proved to be done willfully, which can only proceed from a brutal or malignant mind, it seems a question solely for the consideration of the jury to attribute the real motive to it, to which the transaction itself will most probably furnish a clue.” East's P. C. 1074. Erom this it appears, that notwithstanding the severity of the penalty, and the fact that by the preamble to the first-named act, the offense seems to be pointed at such as committed it from motives of malice against the owner, the English 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 bo 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.

W e are aware that the decisions in some of the states seem to go further than this, but we decline to follow them.

Third. It is claimed that the court erred in the instructions given to the jury on the question of malice.

The offense with which the defendant was charged, if perpetrated at all, must have been done willfully and deliberately, and from the testimony set out in the record the jury was warranted in finding that it was done for the purpose of gaining by another’s loss; the act itself was cruel and seriously injurious to the animal. These circumstances carry with them unmistakable indications of a malevolent and wicked spirit; and where an act is so done, for such a purpose, with such consequences and in such a spirit, the law infers that it was done maliciously. In effect, the jury was so instructed by the court on this point.

Finding no error, either in the admission of testimony or in refusing to give the instructions requested, or in the charge given to the jury, the judgment of the Court of Common Pleas must be affirmed.

Judgment accordingly.

McIlvaine, C. J., Welch, White, and Rex, JJ., concurred.  