Hobson v. State , 44 Ala. 380 ( 1870 )

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.