Under the evidence in this case, the defendant could have been convicted under either Section 7359 or Section 7360, Comp. Gen. Laws of 1920. The prosecution in this case was under Section 7359 which makes it a criminal offense to "willfully and maliciously" kill, maim or disfigure any horse, cattle or other beast of another person.
Section 7360 makes it a criminal offense to "willfully and wantonly and without malice toward the owner," kill, maim or disfigure any of such animals.
The word "maliciously" as used in Section 7359 C.G.L., does not appear to have been construed by this court, but we have construed that word as used in a kindred statute, Section 7426 C.G.L., which was Section 5305, Rev. Gen. Stats. of 1920, provides that: "Whoever willfully and maliciously destroys or injures the personal property of another, in any manner or by any means not particularly described in these Comp. General Laws, shall be punished by imprisonment not exceeding twelve months, or by fine not exceeding one thousand dollars," etc. This statute was construed by this court in the case of Williams v. State,92 Fla. 648, 109 So. 805. In that case the defendant together with several of his negro employees was going along the road in his car. The Ford car described in the indictment *Page 786 was parked along the road in such manner that other cars could have passed, and had passed around it. For some reason, best known to the defendant, he stopped his car, and, together with the assistance of his employees, overturned the Ford car into a ditch alongside the road and in that manner caused the injury as alleged. It was not shown that he knew the owner of the car. In the opinion in that case, which was written for this court by Circuit Judge Chillingworth, it was said:
"The defendant contends that the evidence does not disclose that the act was willful or malicious. `Willful' simply means intentional; `malicious', as used in the statute, means nothing more than that the wrongful act should be done voluntarily, unlawfully and without excuse or justification. United States v. Gunther, 5 Dak. 234, 38 N.W. Rep. 79, 80. We believe that the evidence clearly shows that the defendant did willfully and maliciously, without any excuse or justification, turn over the car, and thus injure it as alleged in the indictment, to an amount in excess of fifteen dollars."
See also Heron v. State, 22 Fla. 86, where the plaintiff in error had been indicted for willfully and maliciously burning a pile of lumber. In that case it was held that the destruction and malice may be proven by circumstantial evidence satisfactory to the jury. See also 38 C.J. 345-347, 359. In its legal sense, the term malice has been frequently said to denote a "wrongful act done intentionally without just cause or excuse." 38 C.J. 348-351, citing a large number of cases. The same work defines "express malice" as follows: "A term used sometimes to denominate actual malice or malice in fact, meaning malice existing as a matter of fact; a deliberate intention to commit injury evidenced by external circumstances; a specific desire to vex *Page 787 or injure another from malevolence or motives of ill will. The term implies personal hatred or ill will or wanton disregard of civil obligations." It was in this sense that the word "maliciously" was used in the arson statute. Love v. State,107 Fla. 376, 144 So. 843.
The word "maliciously" as used in Section 7359 is evidently used in the same sense as the same word was used in Section 7426 C.G.L., which was construed in the case of Williams v. State,supra, above quoted from. Both statutes belong to the same family, springing from the common law offense of "malicious mischief." So construed I concur with Mr. Justice BUFORD that the conviction in this case should be affirmed.
WHITFIELD, C.J., and BUFORD, J., concur.