The Hawaiian gazette., 1890-10-28
OPINION OF THE COURT BY DOLE, ]

IenudnG complained OF constituted
malicious injury.
The essential facts' are stated by
the Chief Justice sitting in Chambers
in the decision appealed from as fol
lows:
"On the Oath February last, the
attention of the defendant was called
to a dog which was running away
with a piece of meat in his mouth
from the kitchen on the premises
where defendant was living, on
School street in Honolulu. Defend
ant ran to where the dog was and
threw a stone at it which hit it, then
opened a gate near by, but the dog
not making his escape, defendant
threw another stone which also hit
the dog. The dog was then taken
away by native woman, who was
attracted to the spot by its cries.
The dog is a Gordon Setter pup,
about five months old of good breed
ing and worth from $25 to $50, the
property of one George Cavanagh.
The injuries to the dog occasioned
by the stones thrown by defendant
were the breaking of one of it's fore
legs in two places, and the knocking
out, breaking and displacing some
of its teeth, mainly the milk teeth,
which are supplanted in the course
OF nature by permanent teeth"
Defendant did not know who the
dogs owner was"
"The defendant is charged under
Chapter % of the Penal Code with a
malicious injury and mischief, by
which is made punishable "any in
jury or offense maliciously done or
caused by any one to the property,
right or liberty of another, whereby
another may or might be subject to
loss, damage or prejudice, or disturb
ance in any of his rights, liberties or
privileges of person or property"
The Chief Justice found the de-
PENDANT guilty of malicious injury,
confirming the judgment of the
Police Court where the cause was
first tried.
The defendant excepted upon the
following grounds
LIST. No offense had been proven.
End. That no malice had been shown.
3rd. That it was necessary for the
prosecution to prove, beyond reason
able doubt, that defendant had ma
lice toward the owner of the property
injured. 4th. That under Section 8
of Chapter XIII of the Penal
Code, defendant had right to attack
the dog under the circumstances
shown.
Upon the third point by defend
ants counsel, we agree with the con-
clusion of the decision appealed
from, to the effect that it is not
necessary to show special malice
against the owner of the property,
but that it is sufficient if there is no
adequate legal justification and ga
reckless disregard for the property
of another" who is not necessarily
known to the defendant.
1t is not clear to us that the cir
cumstances bring the cause within
the section of the law referred to by
defendants fourth ground of excep-
ton.
The defendants first and second
grounds of exception, however, raise |
the question of malice which Is
necessary to the offense of malicious
injury. ;,
Onr statutes have not greatly |
modified the common law relating |
to this offense. While malice toward |
the animal injured does not consti-
tute malicious injury, yet by the
common law it was sufficient If an
uaimal was injured in spirit of |
wanton cruelty-(4 B 1, Com. 244)
and by our law the killing, mutilat-
ing, manning or wounding an animal
without adequate legal justification,
and with reckless disregard for the
property of another, constitutes the
offsnse.
Upon the question of adequate
legal justification under the facts
shown, we are compelled TO differ
from the decision appealed from.
The dog was a trespasser, not only
upon the grounds, but in the dwell
inc house of the defendant, and he
was in the act of carrying off piece
of beef from the kitchen at the time
the defendant attacked him, al
though he saw only that the GOg was Was
mouth, but didn't know what 1T was.
These circumstances afforded an
adequate legal justification for the
defendant,s attack upon the dog
which resulted in the injuries shown
In the evidence; adequate to the e1-
tent of accounting for the attack
without any necessity of explaining
II upon the theory of malice, or a
reckless disregard for the property
of another Il
Our opinion as to the absense OF
malice in the defendant is somewhat
strengthened by the application OF
the 4th section of our statute OF
malicious injuries to the circum-
stances. This section reads, IAN act
Il. i