
    HOBSON vs. THE STATE.
    [EBOSECOmoj* VUE MAUCJOU» MISCHSEE.j
    
      Í. Malieions injury to> animals; what essential ingredient ef. — Malic® towards the owner is an essential ingredient of the offense of malicious injury to animals.
    2. Same ; when mccHee may he inferred. — When the injury is unlawfully committed, requisite malice may be inferred from the instrument used, the wantemuess of the deed, and any attendant circumstances which would justify the inference' in other' mimes where malice a necessary constituent.
    Afheah from the Circuit Court of Hale,
    Tried before Hon. M. 3. Saffold,
    The appellant was tried on a statement by the solicitor, on appeal from the county to the circuit court, for “unlawfully and maliciously killing a hog, the property of Natham Lewis, colored, <fec.” The appellant was “hog minder” for the owner of the plantation on which Lewis lived, and as such was in the habit of carrying a gun. The hogs of Lewis and other laborers on said farm, had lately eaten up some kids belonging to the plantation, and on that occasion, Lewis and other farm hands being present, the proprietor of the place informed them that they must keep their hogs up in pens as they had contracted to do, or otherwise he would have the hogs shot, and instructed the appellant in the hearing of Lewis and other negroes to shoot any hogs getting out. “ Neither Lewis nor any of the hands objected to this, but promised to keep their hogs up.” The appellant and Lewis bad lived on the same place for years, and no ill feeling or grudge existed between them. It was proved, however, that when the hog was killed, the hog being among the kids at the time, that appellant had sent Lewis word “he bad a dead hog out there,” and remarked that “ he would load up his gun and and blow him up, if he made any fuss.” These were all the material facts developed on the trial.
    
      After the court had charged the jury as to the law applicable to the case, the appellant requested the following charges in writing:
    1st. “ It is ineumbent on the State to prove to the satisfaction of the jury that the defendant killed or wounded the animal, both unlawfully and maliciously; and unless they are satisfied beyond a reasonable doubt that the defendant had malice against the owner of the hog they must acquit him.”
    2d. “ If the jury believe that the defendant killed the hog of Lewis, and thought he had a right to do so under the instructions of his employer, the proprietor of the premises, and without malice to the owner of the property, they must acquit the defendant.”
    The court refused to give these eharges; defendant ex-' cepted, and now assigns the refusal to give the charges as error.
    Coleman & Seay, for appellant.
    Joshua Morse, Attorney-General, contra.
    
   B. E. SAEFOLD, J.

The appellant was prosecuted under §3733 of the Revised Code, for malicious injury to animals.

The real essence of this offense is malice towards the owner of the animal injured. — Northcot v. The State, 43 Ala. 330; Hill v. The State, 43 Ala. 335; 37 Ala. 459; 7 Ala. 728.

The two charges asked should have been given.

It is not indispensable to a conviction that the defendant did or said any thing, either before or after the commission of the act, indicative of express malice towards the owner. Malice may be inferred, if the injury is unlawful, from the instrument used or the wantonness of the deed, and from any attendant circumstances which would justify the inference in other crimes where malice is an essential constituent.

The judgment is reversed and the cause remanded. The prisoner will be kept in custody until discharged by due course of law.  