
    STATE vs. COUNCIL.
    Indictment for stabbing a horse, under the act of 1803, c. 9.
    On an indictment for malicious mischief, it is not necessary to prove express malice. The killing a horse is indictable at common law.
    Scott for the defendant,
    insisted, that this was not an indictable offence at common law, that under the act it must appear to have been wilful and malicious, which evidently was not the case in this instance, for it had been proved, that the horse frequently broke the fence of the defendant, got into his cornfield, and eat his corn ; and moreover, that the defendant had spoken to the owner of the horse about it, previous to his being killed.
    If the defendant killed the horse with a view to save his corn-field, it cannot be said to be wilful and malicious ; these expressions in the act imply personal antipathy, Ird. 343, with the act of 1807, c. 3, shew that fences five feet high, are considered lawful ones. The fence of the defendant was of that height, and therefore he has been in no default on that ground.
    
      Kennedy for the state,
    relied upon 1 Dall. 335, to shew that indictments for killing horses, were sustained before the passing the act of 1803, c. 9.
   Campbell, J.

Thought that the expressions used in the act, made it necessary that there should be a personal dislike to the owner of the property.

Overton, J.

The acts of North-Carolina and Tennessee respecting fences, apply to civil and not criminal proceedings. The act of 1803, c. 9, is referable to the criminal code alone. The expressions wilful and malicious,under the act of stabbing, imply malice, nor is it material whether there is proof of malice against the owner of the property or not.—When the act is in itself illegal, the law presumes evil intention. But not so where the act is indifferent in itself.

Powell, J.

Thought such an offence indictable before the passage of the act, and if the defendant should not be guilty under the statute, he might be so by the common law.

Verdict—Guilty.  