Defendant appeals of right his January 17, 1979, jury conviction of wilfully and maliciously killing a dog owned by another. MCL 750.377; MSA 28.609. On February 16, 1979, defen *279 dant was sentenced to a term of one year in the Allegan County jail. We affirm.
Defendant first argues that the lower court erred in not granting his motion to vacate his conviction on the ground that a dog is not a beast within the intent of the statute under which he was convicted. We disagree.
The statute under which defendant was convicted makes it a crime for any person to "wilfully and maliciously kill, maim or disfigure any horses, cattle or any other beasts of another * * Although neither Michigan statute nor case law appears to have explicitly defined the term "beast” in a manner that would include dogs, we note that a criminal statute prohibiting the placement of poisonous substances in places where they are liable to be eaten by "beasts”, MCL 750.437; MSA 28.692, specifically provides that, "any person who shall expose any known poisonous substance, whether mixed with meat or other food or not, so that the same shall be liable to be eaten by any horses, cattle, dogs or other beasts of another, shall be guilty of a misdemeanor * * *”. (Emphasis supplied.)
Both of these statutes were enacted in 1931 at the same legislative session. See,
Construing these two statutes in a manner that would make them consistent and harmonious, we glean a legislative intent to include dogs within the term "beasts” for purposes of both statutes. The Legislature’s use of the phrase "dogs or other beasts of another” in the poison statute persuades us that the Legislature did not intend to create an anomolous situation whereby dogs would be protected from persons who placed poison where it is likely to be eaten by them but not protected from persons who would otherwise wilfully and maliciously kill them. Therefore, the lower court did not err in holding that defendant’s conduct constituted a violation of the statute under which he was convicted.
Defendant next argues that the lower court erred in instructing the jury that they could find him guilty if they found that he acted with either malice towards the dog or towards its owner. Defendant argues that he could have been found guilty of wilfully and maliciously killing a dog only if he acted with malice towards the animal.
To the extent that the judge instructed the jury that the jury was required to find that defendant acted with malice either towards the animal or its owner in order for him to be convicted of the charged offense, the judge erred. The element of malice in this statute requires only that the jury find that defendant 1) committed the act, 2) while knowing it to be wrong, 3) without just cause or excuse, and 4) did it intentionally or 5) with a conscious disregard of known risks to the property of another. CJI 32:1:01.
*281 The judge instructed the jury as to the definition of the term "malice” in accordance with this Standard Criminal Jury Instruction. That was all that he was required to do. Any instruction by the judge requiring the jury to find that defendant’s malice was directed either towards the animal or its owner was irrelevant and could not have prejudiced defendant because, in effect, it added another element to the prosecutor’s case making it more difficult to convict defendant. Therefore, no reversible error has occurred.
We agree with defendant that the lower court erred in ruling that certain hearsay testimony of a police officer was admissible at trial under MRE 801(d)(1); however, we disagree that the admission of this testimony constituted reversible error. Judy Mannon, an owner of the dog killed by defendant, testified at trial that after the shooting someone approached the door of her residence and identified himself as "Butch”. Defendant is known by the name "Butch”. On cross-examination of Deputy Deppe, a police officer who investigated the incident, defense counsel elicited testimony to the effect that Ms. Mannon did not tell the officer in her statement that defendant had identified himself at any time. Subsequently, the prosecutor elicited the testimony objected to from a second police officer who also had investigated the incident, Officer Waldron, to the effect that Ms. Man-non had told him that the defendant identified himself to her after the incident.
Defendant is correct in his assertion that this corroborating testimony was not admissible under MRE 801. However, it is clear that the testimony was offered to rehabilitate Ms. Mannon’s credibility which had been impeached by the testimony of Deputy Deppe; it was not offered as substantive
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evidence. As such, it was proper rehabilitative testimony and there was no violation of the hearsay rule.
People v Miniear,
Defendant’s final claim of error is that the prosecutor abused his discretion by charging defendant under a statute that made his actions a felony rather than under a statute that would have made defendant’s actions only a misdemeanor. MCL 750.377; MSA 28.609, the statute under which defendant was charged and convicted, makes it a felony for a person to wilfully and maliciously kill animals belonging to another. Defendant argues that he should have been charged under MCL 752.21; MSA 28.161, which provides that any person who "tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates, or cruelly kills, * * * any animal * * * is guilty of a misdemeanor”. We disagree.
Where statutes are distinct in purpose and scope, the prosecutor does not abuse his discretion by charging an accused with the greater offense.
People v LaRose,
Affirmed.