1. The statute on which the indictment is founded is the act of October 12th, 1879, code §4612(a), which reads as follows: “ Every person who shall set on foot, or instigate, or promote, or engage in, or do anything in furtherance of any act of cruelty to any - domestic animal, shall be guilty of a misdemeanor,” etc. We find on examination that this enactment was suggested by a statute of New York; but there it was but part of a system, whilst here it is the whole system adopted for the prevention of cruelty to animals, so far as range of indictable conduct is concerned. The learned counsel who argued the case for the plaintiff in error made a grammatical point, and elaborated it with an ingenuity that, though not convincing, was highly entertaining. His point was that no single, direct and immediate act of cruelty is made penal, but only anything done in furtherance of such an act. He who commits the main act, the last in the series, the one that excites the pain and suffering in the animal, is not within the purview of the statute; but those only who set on foot, or instigate, or promote, or engage in, or do something in furtherance of the main or ultimate act. In other words, to pass at once to the legal result of this construction, the chief offender, the principal in the busi*169ness, is not dealt with by the law, but his aiders and abettors, those who bear to him a relation analogous to that of principals in the second degree or accessories before the fact in felony are alone denounced as criminal. Such, in substance, was the contention of counsel, and the outcome of his nice and accurate grammatical argument.
Perhaps if he had been discussing the statute ofN.ew York, from which ours was taken,, we could have agreed with him that, in connection with the other provisions of that statute, these particular provisions might be restricted to aiding and abetting; but we are satisfied they are not so restricted in our system, for they constitute the system and the whole of it.. Besides, it is no strain upon language to hold that he who inflicts an act of cruelty promotes, engages in or does something in furtherance of such act, though it be his own. The very doing of the act, is engaging in or doing something that furthers it. All that is done whilst the act is in progress furthers it and' promotes its accomplishment. To cruelly drive and cruelly treat any domestic Animals, such as horses, is an offence under the words of the act of 1879, above recited, as well as to aid or abet another in so 'doing.
2. Evidence as to the value of the mares before the injury and of the extent to which their value was diminished by the injury was not.irrelevant, as it would throw some light on the nature and severity of the treatment to which the animals were subjected. The statute declares that “theword cruelty shall be held to include every wilful act, omission or neglect, whereby unjustifiable pain, Suffering or death is caused or permitted.” If in going a distance of twelve-miles, one of the mares lost value to the extent of $100.00, being one-third, and the other to the extent $25, being one-twelfth of her whole value *170at starting, who would not conclude that the former was worse treated than the latter, and that both were more severely treated than if they had lost nothing or only a few dollars in value ? The average loss of the one per mile was over $8, and of the other over $2. It is obvious, we think, that such deterioration in value might properly be considered in solving the question whether, under the circumstances, unjustifiable pain or suffering was caused by the act or acts which produced it.
3. There was no error in allowing the State to rebut the prisoner’s statement by evidence, though the witness in rebuttal repeated some of his'previous testimony. Had there been no reply to the statement, the jury may have thought that the witness had forgotten the exact facts, and this inference would be obviated, perhaps, by allowing the witness, after hearing the prisoner’s version, to restate them. At all events, the matter' was subject to the discretion of the court, and there was no abuse of the discretion that we can discern in the present case.
4. The verdict was justifiable with respect both to law and evidence. Though not the strongest, the case for the State was strong enough to warrant a conviction.
■ 5. The act of September 21st, 1881, (acts of 1880-81, p. 142,) is not cited in the margin of the code of 1882, 'and therefore was overlooked when we suggested, in our judgment of affirmance in the present case, that the sentence pronounced by the city court be reconsidered. The learned and able judge of that court has since called our attention to the act above referred to, and there can be no doubt that under it his sentence was warranted by law, this act expressly adopting §4310 of the code, as the measure of punishment. Though the acts of 1875 and 187G were both wholly repealed, this did *171not hinder the present case from being governed as to penalty by §4310 of the code.
Judgment affirmed.