¶1delivered the opinion of the court.
¶2Appellant was convicted upon an affidavit charging him with having “wilfully, unlawfully, and mischievously” killed a hog belonging to J. T. Boss. The evidence for the appellee was to the effect that Boss turned the hog out, permitted it. to stray off, and that it was killed by the appellant while it was in his potato patch. The evidence for the appellant was that he had repeatedly tried, but had been unable, to keep the hog out of his potato patch; that he did not know who owned it, and killed it solely to prevent damage to his crop. On this evidence the jury were not warranted in finding that the hog was killed either maliciously or mischievously, but only that it was killed to prevent' its damaging the potatoes. Consequently the peremptory instruction requested by the appellant should have been granted.
¶3Beversed, and judgment here for appellant. _
¶4Reversed.