¶1The objection which is made to the form of the complaint cannot be supported; and the motion in arrest of judgment was properly overruled.
¶2In considering the exceptions taken to the ruling and instructions at the trial, we find more difficulty. The defendant asked that the jury should be instructed that unless he inflicted the blows upon the horse for the purpose and with the intention of injuring the horse, or inflicting pain and suffering upon the horse, he could not be convicted. This instruction was given in a qualified manner. The jury were instructed that they must be satisfied that the defendant inflicted the blows upon the horse purposely, intentionally; and that it was immaterial what may have been his motive for so doing; and that they must also be satisfied that the blows caused excessive pain and suffering to the animal.
¶3We have no doubt that the instructions asked should not have been given, and that they would have been erroneous. The motive of intending to inflict injury or suffering is not, by the terms of the statute, made an essential element of the offence. And although the most common case to which the statute would apply is undoubtedly that in which an animal is cruelly beaten or tortured for the gratification of a malignant or vindictive temper, yet other cases may be suggested, where no such express purpose could be shown to exist, which would be within the intent as well as the letter of the law. Thus, cruel beating or torture for the purpose of training or correcting an intractable animal; pain inflicted in wanton or reckless disregard of the suffering it occasioned, and so excessive in degree as to be cruel; torture inflicted by mere inattention and criminal indifference to the agony resulting from it, as in the case of an animal confined and left to perish from starvation; we can have no doubt would be punishable under the statute, even if it did not appear that the pain inflicted was the direct and principal object. Severe pain inflicted upon an animal for the mere purpose of causing pain or indulging vindictive passion is cruel. And so it is if inflicted without any justifiable cause, and with reasonable *582cause to know that it is produced by the wanton or reckless conduct of the person who occasions it.
¶4But, on the other hand, we fear that the instructions given were not full and explicit enough to make the jury understand the precise nature of the offence with which the defendant was charged, especially when taken in connection with the other remarks made by the presiding judge.
¶5It certainly is not true, as an abstract proposition, that it is immaterial what may be the motive of a person who inflicts pain upon an animal, in determining the criminality of the act. Pain inflicted for a lawful purpose and with a justifiable intent, though severe, does not come within the statute meaning of “ cruel.” Thus a surgical operation, occasioning the most intense suffering, may be justifiable, and is not criminal. To drive a horse at a rate of speed most distressing to the brute, when the object is to save human life, for example, or to attain any other object of adequate importance, may yet be lawful.
¶6But as applied to the particular circumstances of this case, as disclosed by the evidence, the instruction might have been supported if it were not for the fact that the attention of the jury was pointedly directed to the defendant’s want of authority to do anything whatever to the horse. They were told that under some circumstances a person might lawfully inflict force upon a horse, as where he had the ownership or control of the animal, and did it for the purpose of discipline or government; or where he did it for the purpose of driving the horse from his premises, if trespassing; but that, in such cases, the law required that the force used should not be immoderate, or inflicted in such a manner as to cause unnecessary pain; and that it was not pretended that the defendant had any right to use any force upon Martin or his horse.
¶7We think these instructions may have led the jmy to lose sight of the true character of the offence with which the defendant was charged, and thus that injustice may have been done. The cruel treatment which the statute contemplates is the same, whether inflicted by the owner of the animal or by another. The jury should have been made to understand that if the *583defendant struck the horse for the purpose of driving him away, and without any intent to torture or injure him, and the blows given, if they had been given by his owner for the like purpose, would not have been so excessive or immoderate as to be cruel in him, they would not make the defendant an offender under the statute merely because he was a trespasser in striking the horse. The title to the horse has nothing to do with this offence. If the defendant’s object was a lawful one for any person, and his act was not an excessive and cruel use of force for that.object, he should have been acquitted.
¶8 Exceptions sustained.