He stated that considerable damage had been done since he had been there by the depredations of the dogs on the premises; that eggs and chickens had been destroyed, the garbage cans dragged about the premises, and flowers and gardens scratched up. He stated further that he had actually seen a large dog belonging to Mr. Wilson devour a nest of eggs on which a hen was setting. He stated that the patients had been very much annoyed in the nighttime because of dogs coming among the cots and taking the lunches which had been prepared for the patients to eat during the night, and in many instances waking up and frightening the patients; that the ladies who were inmates *Page 258 of the institution had been frightened on several occasions by being awakened by dogs which had come in among their cots or beds."

Others testified to the same effect. As a result of that situation and shortly before the transaction in issue, Dr. Hayne, the State health officer, addressed a letter to the Attorney General in which he reported the intrusion of dogs and asked what steps he might take to prevent it. The Attorney General answered very properly:

"In reply thereto I bed to advise that you are authorized to use such force as is necessary to rid the institution of this nuisance. You have the right and it is your duty to protect these wards of the State from annoyance or harm from any cause."

The defendant thus described how the dog came directly thereafter to be shot:

"And some time subsequent to that one night as I was starting to make rounds, as I was about to leave the center building shown in that picture, my attention was drawn to a dog growling near the center of the building, and I stepped back in the house and got my rifle and fired. Q. Was the dog growling at you? A. Yes, sir; I suppose so. Q. How far were you from him before you shot him? A. About as close as from me to you. Q. He growled at you? A. Yes, sir. Q. And you went back and got your rifle? A. Yes, sir. Q. What size rifle was that? A. Twenty-two. Q. And you shot in the direction of the dog? A. Yes, sir."

"Malice" has been sufficiently defined by prior decisions, and further refinement about a plain English word would not be helpful. State v. Doig, 2 Rich. 179; State v. Alexander, 14 Rich. 247.

We are satisfied that the testimony did not so reasonably tend to fix malice in the defendant's mind when the killing was done as to have warranted a submission of that issue to a jury. *Page 259

The history of the case satisfies us that the Attorney General would have been well within his rights to have directed the solicitor not to hand out a bill against the defendant.

As the case stands, the anomalous spectacle is presented of one of the State's solicitors prosecuting one of the State's public servants, engaged in a difficult and important charity, and that servant is defended by the State's chief law officer.

The judgment is reversed.

MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES HYDRICK and WATTS concur.

MR. JUSTICE FRASER. I fully concur in the law of this case as stated by Mr. Justice Gage.

I cannot concur in the last paragraph. I think the solicitor should have brought the prosecution, if for no other reason than to test the question. I think the Attorney General was bound to defend the State official who acted on his official advice. If the Attorney General should advise officials and then use his authority to prevent a testing of the correctness of his advice, he would become, within certain limits, an autocrat. For these reasons I restrict my concurrence.

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