## Facts

- Michael Allan Dunn lived on 23 acres within a larger tract where a neighbor’s livestock had ranged freely for years.
- After Dunn planted fruit trees, the neighbor’s animals began feeding on the trees.
- Dunn did not complain to the owner and initially drove the animals off by throwing rocks.
- On March 15, 1973, Dunn shot at the animals with a .22 rifle and a shotgun.
- Two colts were killed; a mare was seriously wounded and later euthanized; a jackass survived after being shot.
- Dunn was charged under California Penal Code § 597(a) for maliciously maiming, wounding, and killing animals belonging to another.
- The trial court instructed that “malice” meant an “intent to do a wrongful act” and declined to require malice directed at the animals’ owner.
- The trial court also instructed that use of unreasonable force against the animals in purported defense of Dunn’s property could support guilt.

## Issues

1. Under Penal Code § 597(a), must “malice” be directed toward the animal’s owner (a person), rather than toward the animal, to sustain a conviction?
2. Were the jury instructions proper concerning defense of property, including that unreasonable force against trespassing animals may result in liability under § 597(a)?

## Decision

- The Court of Appeal affirmed the judgment following the jury’s guilty verdict.
- The court held that § 597(a) does not require malice toward the owner; malice is satisfied by the Penal Code definition of malice as an intent to do a wrongful act in injuring or killing the animal.
- The court found no reversible error in the instructions on malice or on the limits of force used to protect property.

## Legal Principles

- For Penal Code § 597(a), “maliciously” incorporates Penal Code § 7(4)’s definition of malice as “an intent to do a wrongful act.”
- The “malice” element under § 597(a) need not be aimed at the animal’s owner; it is sufficient that the defendant intentionally commits a wrongful injury to the animal.
- A property-protection theory does not justify excessive force against animals; a jury may find criminal liability where the force used to repel or prevent damage is unreasonable under the circumstances.

## Conclusion

The court upheld Dunn’s conviction because § 597(a) requires only an intent to do a wrongful act toward the animal, not hostility toward its owner, and because a landowner’s efforts to protect crops must remain reasonable; shooting and killing or gravely wounding animals could be found unjustified and malicious.


People v. Dunn, 39 Cal. App. 3d 418, 114 Cal. Rptr. 164 (Cal. Ct. App. 1974)