This is an appeal from a judgment for malicious mischief and an assessment of damages incident thereto rendered in the Arkansas Circuit Court against appellant. The charge of malicious mischief for the killing of a dog belonging to Roger Crowe on June 18, 1921, was preferred against appellant before a justice of the peace in said county. Appellant was convicted in the magistrate’s court and prosecuted an appeal therefrom to the circuit court, and upon trial d'e novo was again convicted and fined.
Appellant was prosecuted under section 2511 of Crawford & Moses’ Digest, which provides, in addition to a penalty of fine or imprisonment, or both, an assessment of damages in favor of the owner of the animal killed for threefold the amount assessed by the jury. The jury assessed the minimum fine of $20 against *110appellant and ascertained the value of the dog to be $200, and upon this verdict the court rendered judgment against appellant in favor of Roger Crowe, the owner of the dog, for $600.
The testimony adduced in behalf of the State tended to show that appellant killed the dog wilfully, maliciously or wantonly, and that adduced in behalf of the appellant tended to show that he killed the dog under necessity in order to prevent injury to his person from an attack made by the dog upon him. Appellant killed the dog with a shotgun.
Over the objection' and exception of appellant, the court submitted the cause to the jury upon the theory that if the dog was unlawfully killed with a deadly weapon by appellant the law would presume it was done wilfully, maliciously or wantonly. The statute under which appellant was convicted reads as follows: “If any person shall wilfully, maliciously or wantonly, by any means whatsoever, kill, maim or wound any animal of another, with or without malice toward the owner of the animal, which it is made larceny to steal, he shall on conviction be punished by a fine of not less than twenty nor more than one hundred dollars, or by imprisonment in the county jail for a period of not less than ten nor more than sixty days, or by both such fine and imprisonment, and shall, moreover, be liable to damages to the owner- of the animal so killed, maimed or wounded, as in the preceding section provided; provided, nothing in this section shall be so construed as to extend to any person who shall kill, maim, or wound any animal trespassing in the fields or grounds of such person which are enclosed in a lawful fence, as defined in section 309 and sections 4646-4648. ’ ’
In order to convict appellant under the statute it was necessary for the State to prove, by positive or circumstantial evidence, that appellant killed the dog either wilfully, maliciously or wantonly. The gist of the statutory offense of malicious mischief is the killing of *111an animal wilfully, maliciously or wantonly. These essentials of the crime cannot be presumed from the fact that the killing of the animal was unlawful and done with a deadly weapon. A negligent or careless killing of an animal would be unlawful, and.though done with a deadly weapon no inference or presumption in law could be indulged that the careless or negligent killing was wilful, malicious or wanton. The court’s interpretation of section 2511 of Crawford & Moses’ Digest was erroneous, as evidenced by giving the following instruction:
“The defendant in this case admits the killing of the dog, the property of Roger Crowe, and admits the killing occurred at the place and time in the affidavit; and further admits that he killed the dog of Roger Crowe with a shotgun, a dangerous and deadly weapon. You are instructed that where these facts are admitted, if you find that the killing was unlawful, and done 'with a deadly dangerous weapon, the law presumes it was done maliciously, and the State is not required to prove that the killing of the dog by the defendant was wanton or maliciously done.”
The statute, in defining the crime of malicious mischief by killing an animal, does not attempt to impose penalties upon one for unlawfully killing an animal of another with a deadly or dangerous weapon. It penalizes one for maliciously, wilfully or wantonly killing an animal belonging to another.
Our attention has been called to the case of Benefield v. State, 62 Ark. 365, in support of the contention that the statute means that if an animal is unlawfully killed by one with a deadly weapon it will be presumed he killed it wilfully. Wilful and unlawful are not synonymous terms in the law. Acts may be and are frequently made unlawful whether intended or not. The mere commission of an act may be unlawful if prohibited by statute, whether done intentionally or not. The learned judge, in writing the opinion referred to, inad*112vertently followed the construction placed upon an Illinois statute defining malicious mischief, which was different from our statute. The Illinois statute made the unlawful lolling of an animal a crime. Snapp v. People, 19 Ill. 80. Our statute penalizes the wilful, malicious or wanton killing of an animal. The Bennefield case is therefore overruled in so far as it misinterprets the statute before us for review.
Other errors are assigned and insisted upon by appellant for. reversal, but, as the judgment must be reversed for the error indicated, we deem it unnecessary to consider them.
The judgment is reversed and the cause remanded for a new trial.