¶1— The court instructed the jury as follows: “ The State must show that the act was done maliciously. Malice may be inferred or implied from the act or manner of committing the act, or by its repetition, or by the relation existing between defendant and the family in which he lived, and the owner of the fence.” This instruction is erroneous. It is not competent for the jury to consider, as one of the circumstances tending to prove a malicious intent upon the part of the defendant, the relation existing between the family in which he lived, cmd the owner of the fence.
¶2*108The defendant is responsible for the relation existing between himself and others, and the question of his guilt or innocence may well be affected by the character of such relation.
¶3But there is no justice nor propriety in holding him responsible for the relation existing between third persons.
¶4For the error in giving this instruction the judgment is
¶5Reversed.