Johnson v. State , 37 Ala. 457 ( 1861 )

A. J. WALKER, C. J.

The statute under which the defendant was indicted, is in the following words : “Any person, who tvillfuTly or maliciously injures or disfigures any horse, mare, gelding, colt, filly, ass, or mule, the property of. another, must, on conviction, be fined not less than five times the .amount of the injury done, and may be imprisoned not more than six months.”- — Code, § 3115. The indictment is not framed under section 3114, which prescribes the punishment of a person “who unlawfully and maliciously kills or disables any animal belonging to another, or unlawfully and maliciously injures or destroys any article or commodity of value, the property of another.” — Code, § 3114. An obvious difference between the two sections is, that under the former, willfulness or malice, characterizing the specified act, is sufficient to constitute the offense-; while under the latter, unlawfulness and malice are necessary ingredients of the offense. A like difference exists, between the statute under which the indictment in this case'was framed, and .the statute which was construed in State v. Pierce, 7 Ala. 728.—Clay’s Digest, 417, § 5. This last-named statute expressly required, that the act should be unlawful, willful, and malicious ; and it was in reference to that statute, that the ’court, in .arguing the question before it, declared malice against the owner of the animal to be an essential element of the offense. That dictum, made in arguing the construction of such a statute, is entitled to no influence upon the question presented in this case. Under the statute now under consideration, the willful performance of the specified acts, -as well as the malicious performance 'of them, constitutes the offense. It was, therefore, proper for the court to charge the jury, that proof of malice towards the mule or its .owner was .not indispensable.

[2.] We think the court below committed no error, in permitting the State to prove that the damage or injury done to the mule was fifty dollars. Considering .this evidence in connection with the evidence which precedes, .it, we understand it to amount to nothing more than the -expression of the opinion of the witness, that the value of the mule was diminished fifty dollars by the injury done to if. It is but a comparison of the value before and after the injury j and such a comparison it was certainly competent for the witness to make. — Ward v. Reynolds, 32 Ala. 385. We do not think the question decided in the M. & W. R. R. Co. v. Varner, (19 Ala. 185,) at all analogous to that presented in this- case.

Affirmed.