Farley

The defendant was charged with violating section 597 of the Penal Code in that he subjected certain horses to "needless suffering and unnecessary cruelty." At the beginning of the trial the prosecutor and defense counsel stipulated that the "cruelty" that would properly be involved in the trial was the failure to provide the animals with proper feed and water.

Evidence was introduced from lay witnesses that there was a lack of proper food and water. Two veterinarians testified as to the physical condition of the animals. Neither was able to say that any animals died because of lack of feed or water.

Defense counsel requested that the jury be instructed that conviction requires proof of malice, i.e., in the sense that the failure of feeding and watering was committed with intent to injure the animals (or with reckless disregard of whether they were injured or not).

The trial court refused to give the instruction, and instead, instructed the jury that guilt could be found upon proof that the animals were not properly fed or watered and that the defendant acted "wilfully" only in the sense of Penal Code section 7, i.e., that he intended to do, or fail to do,…