People v. Dunn

[420]

Opinion

DRAPER, P. J.

Charged with maliciously maiming, wounding and killing animals which were the property of another (Pen. Code, § 597, subd. (a)), appellant was found guilty by a jury and was admitted to probation on condition he serve six months in county jail and make restitution. He appeals.

Appellant lived on 23 acres of land in a large tract over which animals, belonging to one Cabezut, had ranged freely for some years. Appellant had planted some fruit trees. Some of Cabezut’s livestock began to feed on the newly planted trees. Appellant never complained to Cabezut but drove off the animals by throwing rocks. On March 15, 1973, however, he fired at them, using a .22 rifle on one occasion, and a shotgun on another. Two colts were killed, a mare was so seriously wounded in the neck and stomach that she had to be put out of her misery, and a jackass, also shot in the stomach, survived.

The trial court instructed the jury that malice was an element of the crime, and defined malice as “an intent to do a wrongful act” (Pen. Code, § 7, subd. 4, 2d cl.) but refused to instruct that such malice must be directed to “another person,” i.e., the owner. Subdivision (a) of section 597 makes it an offense to “maliciously” maim, wound, or kill the animal of another. Subdivision (b) proscribes acts of cruelty to “any animal,” whether owned by the defendant or another. Subdivision (b) does not use the word “maliciously.” Hence appellant argues that the malice required by subdivision (a) necessarily must be against the owner himself. We cannot agree.

As initially enacted in 1872, section 597 provided that “[ejvery person who maliciously kills, maims, or wounds an animal, the property of another, or who maliciously and cruelly beats, tortures, or injures any animal, whether belonging to himself or another, is guilty of a misdemeanor.” The 1905 amendment (Stats. 1905, ch. 519, p. 679) omitted the word “maliciously” from the definition of the offense against an animal not owned by another. It is apparent, however, that. the intent was not to alter the direction or object of the malice. Rather, the amendment added numerous specific acts of cruelty to an animal owned by a defendant. Each of these was of a nature—e.g., “tortures,” “torments,” “cruelly beats”— necessarily implying the necessity of malice in the second sense of the code definition (Pen. Code, § 7, subd. 4, 2d cl.), “an intent to do a wrongful act.” The code commissioners’ note to the 1905 amendment (Deering’s Pen. Code Ann. § 597, p. 580) states that its purpose is to