¶1By the Court.
¶2delivering the opinion.
¶3"We think the proposed evidence of the mule’s thievish and unmanageable character was improperly rejected. It was material, by way of support, to the other evidence which showed that Wright’s motive in shooting the mule, was a desire to protect his crop, and not either ill-will to the owner or cruelty to the mule. The whole evidence against Wright was his own admission that he had shot the mule. This admission was coupled with a statement that he had shot him to keep him out of his corn-field, and that the mule was in his field when he shot him. Now, the truth of this statement, that the mule was in his field, was most material to his defense, and the fact that the mule had a proclivity for being in such places, and ,was hard to be kept out of them, supported the probability of the statement. If the mule really was in his field as he asserted, the fact very powerfully supported his further assertion that his motive in shooting was the protection of his crop. The question to be tried was, not whether he was justified in shooting the mule, but whether his motive in shooting was malicious ? The question of justification would be the issue in an action for damages against him, but on this indictment the issue was, malice or no malice. If he shot from the motive of protecting his crop, and not from either ill-will to the owner or cruelty to the animal, his motive was not malicious, whether it was justifiable or not, and his act was not malicious mischief. I will add, that with this view of the law, I think the verdict of guilty is unsupported by the evidence. The Court did not consider this view of the case, and I speak only for myself in expressing the opinion that the evidence is not sufficient to support a conviction. The facts all seem to me to point to the motive of protecting the crop, and not at all, or very slightly if at all, to any ill-will to the owner or cruelty to the mule.
¶4Judgment reversed.