"Nor is it at all reconcilable with the theory that the statute of 22 and 23 Car. II., which makes the killing of cattle in the night time a felony, subjects the persons guilty of wounding cattle in the night time to triple damages, only in a civil action at the suit of the party grieved.1 "In Wharton's Criminal Law, it is said that malicious mischief in this country as a common-law offense, has received a far more extended interpretation than has been attached to it in England, and the learned author has defined the commonlaw offense of malicious mischief, as received in this country, to be any malicious or mischievous injury, either to the rights of another, or to those of the public in general.' This, probably, is law within the Commonwealth of Pennsylvania, where the crime of malicious mischief has received a very wide interpretation. But the proposition that any malicious or mischievous injury to the rights of an individual, is an indictable offense at the common law, is unwarranted either by principle or authority. It would render every willful trespass an indictable offense. 3 "In Respublica v. Fancher, it was held by the Supreme Court of Pennsylvania, that an indictment would lie at the common law, for maliciously, willfully and wickedly killing a horse. The Attorney-General in that case admitted that he had not been able to discover any instance of an indictment at common law for killing an animal, or, indeed, for any other species of malicious mischief; that, in all the precedents, as well ancient as modern, he had found the charge laid contra forma statuti, except in the case of an information for killing a dog;' upon which, however, he declared he did mean to rely. The court, however, appears to have relied upon it, and no other authority is cited in support of the decision. It is remarkable that the case cited is not to be found. Neither the authority itself, nor the reason assigned, commend the case to our favorable regard. This case is approved in Commonwealth v. Taylor, and appears to be the settled law of that Commonwealth. "In People v. Smith, it was held that an indictment lies for maliciously, wickedly, and willfully killing a cow, the property of another. The indictment was manifestly framed upon the authority of Respublica v. Fancher,' and is supported mainly by the authority of that case. The case is sustained on the broad principle, that malicious mischief to private property without or expectation of gain is indictable at common law as a misdemeanor. The same principle is approved and adopted in Loomis v. Edgerton. In Kilpatrick v. People, which was an indictment for unlawfully, willfully, and maliciously destroying the windows of a dwelling house, it was held, upon a review of all the cases, that a mere act of trespass does not become indictable if committed maliciously and without claim of right or motive of gain. The case is distinguished, it is true, from the preceding cases, upon the ground that the act was not charged to have been committed secretly, and that it lacked the ingredient of cruelty. But the broad principle upon which the previous cases were decided was utterly repudiated. I know of no principle, says Justice Beardsley, in delivering the unanimous opinion of the court, in which the act described in this indictment can be held to be a public crime. A great outrage it certainly was, and, therefore, very fit to be 13 Stat. at Large, 354 secs. 1, 5. 2 (ed. 1857) sec. 2002. 31 Dall. 335. 4 Cited from 12 Mod. 337. 55 Binn. 277. 65 Cowen, 258. 7 1 Dall, 335. 8 19 Wend. 419. 5 Denio, 277. considered by the Legislature. But the common law regards it as nothing more than an aggravated trespass. "In State v. Briggs, the Supreme Court of Vermont sustained an indictment for maiming and destroying colts, in direct conflict with the authority of Ranger's Case.2 Wanton cruelty to the beast is declared to be the gravamen of the offense. Upon this principle, the defendant would be equally criminal for killing his own beast. But the gravamen of the crime of malicious mischief is malice toward the owner of the beast, and if it appear that the beast was killed from other motive the indictment fails.3 In a more recent case in the State of Vermont, it was adjudged that an indictment could not be sustained for feloniously, maliciously, mischievously, and wickedly killing a beast, the property of another, thus overruling the prior case of State v. Briggs. "The adjudications in the American courts upon this subject have not been uniform. It is certainly true that, in several of the States, malicious mischief, as a common-law offense, has received a far more extended interpretation than has been attached to it in England. A collective and discriminating review of the authorities will be found in 7 Law Reporter.5 But no such extended construction of the common law has been adopted in this State. The only reported case upon the subject of malicious mischief recognizes and adopts the rule of the ancient common law. The sixty-first section of our statute of 1796,7 which is substantially the same with the seventh section of the present act, makes the malicious killing or destroying of certain cattle a misdemeanor, whether committed by night or by day, but does not extend to the wounding of cattle, nor to all cattle, as both the English statutes of 22 and 23 Car. II., and of 3 George I. do. It is worthy of notice that the manuscript draft of this clause of the act of Paterson embraces the provisions of the first and fifth sections of the act of Charles II., making both the killing and the wounding of cattle a misdemeanor. Its language is, if any person shall willfully, unlawfully, and maliciously kill or destroy, maim, wound, or hurt any horse, etc. The words 'maim, wound, or hurt,' were stricken out before its final enactment, thus making it indictable only to kill or destroy, not to maim, wound, or hurt an animal, and affording the strongest evidence that the omission was the result of design, not of inadvertence. And this fact is the more significant when it is remembered that the penalty imposed by the statute for killing an animal was restricted within narpower limits than that authorized to be inflicted for common-law offenses; thus virtually making the wounding of an animal, if it be a crime at common law, a higher offense than the killing of an animal, a result which never could have been designed. "The facts charged in this indictment constitute no indictable offense, and the court of Oyer and Terminer should be advised accordingly." The same is held in State v. Manuel,' BYRAN, J., saying: "This indictment is not founded on the statute,1o but is at common law; and the question is, is it an indictable offense at common law to wound cattle maliciously. 11 Aik. 226. 2 2 East's P. C. 1074. 3 Rex v. Dobbs, 2 East's P. C. 513; 3 Chitty's Cr. L. 1086, note a. 4 State v. Wheeler, 3 Vt. 344. (N. S.) p. 88. 6 State v. Burroughs, 2 Halst. 426. 7 Paterson, 219. 8 Nix. Dig. 114. 972 N. C. 201 (1875). 10 Bat. Rev., ch. 32, secs. 94, 95. "It has been held in this State, indictable to set fire to and burn tar in barrels, to kill a steer, and to kill a dog with malice towards the owner,1 and to burn plows and harness. But in all these cases the property was killed or destroyed and no case is to be found in our reports, of an indictment at common law, when the offense was the wounding of cattle, or the mere injury to the property, short of its destruction. "If we look to England, the source of the common law, we are unable to find a case, when independent of statute, it has been held to be a public offense, to maim cattle, whether with or without malice towards the owner. Both the elementary writers and the decisions hold that such offense is not indictable, but is a civil trespass only. And no precedent of such a form of indictment at common law, or independent of statute is to be found. "In the American courts, the decisions upon this subject have not been uniform; and in several of the States malicious mischief, as a common law offense, has received a much more extended interpretation than has been attached to it in England. But even in these cases, the corpus of the property was destroyed; and it will be difficult to find a case where injuries short of destruction, have been held to be indictable at common law, and certainly the weight of authority in both countries is decidedly the other way. "This court will not be warranted in expounding the common law so as to make offenses indictable, which were not clearly indictable before. That is a matter for the consideration of another department of the government. We have, by statute, made it an indictable offense, unlawfully and on purpose, to kill or maim live stock, under the circumstances described in the statute before cited, but not under all circumstances. Whether the interests of justice and sound morality, do not require the punishment, as a public offense, of all wanton cruelty to live stock, is a question which is attracting much public attention and discussion both at home and abroad, and deservedly so. The remedy for the evil is with the Legislature. It is our province to declare the law to be that this indictment will not lie at common law, and that, therefore, judgment must be arrested." § 188. Animals Statutory Construction. - Whether a dog was 66 personal property," within the South Carolina statute was doubted in State v. Trapp, and that dogs do not come within the Texas statute as to "any horse, cattle, sheep, goat or swine or any other property," was held in State v. Marshall, nor within "horses, cattle or other beasts" in the Minnesota statute. So killing a dog is not injuring "any property." 10 A gelding is not a horse 11 nor is a dog property "real or personal." 12 Buffaloes, though domesticated are not "cattle." 13 8 1 State v. Simpson, 2 Hawks. 460, State v. Scott, 2 Dev. & Bat. 35; State v. Latham, 13 Ired. 32. 2 State v. Jackson, 12 Ind. 329. 34 Bla. Com. 244; 2 East Pl. Cr., ch., 21, sec. 16; 2 Russ. on Cr. 497; Reg. v. Wallace, Cr. & D. Cr. Cas. 403. 4 Archb. Cr. Pl. 182; 3 Chitty's Cr. L. 1087. 5 People v. Smith, Cowen, 258; State v. Fancher 1 Dall. 335; 19 Wend. 419. State v. Beekman, 3 Dutch. 124, and authorities therein cited. 7 14 Rich. 203 (1867). 8 13 Tex. 55 (1854). U. S. v. Gideon, 1 Minn. 292 (1856). 10 Davis v. Com., 17 Gratt. 617 (1867). 18 State v. Crenshaw, 22 Mo. 457 (1856). § 189. Malice Must be Towards Owner. - The malice must be towards the owner and not towards the animal.1 § 190. - Killing to Protect Property. It is not malicious mischief to shoot a trespassing animal to protect crops,2 or to take a mare from his corn field when she was damaging the defendant's growing corn to a secret part of the county, and inflict a wound with the intent of preventing a repetition of the injurys nor to kill a trespassing hog.1 § 191. - Must be Wanton and Malicious. The killing must be wanton and malicious.5 § 191a. " Maliciously" Means Wantonly or With Revenge - Mere Willfulness to do a Prohibited Act is Not Enough. — In Commonwealth v. Walden." the court say: "This is an indictment for malicious mischief, wherein the defendant is charged with the willful and malicious shooting, and seriously injuring, the mare of one Robert Noble, contrary to the Revised Statutes." The evidence is not reported; but whatever it was, the court, in the instruction to the jury, defined the word 'maliciously' in said section, to mean 'the willfully doing of any act prohibited by law, and for which the defendant has no lawful excuse; and that moral turpitude of mind was not necessary to be shown.' If this definition of the crime charged were correct, it would follow that the words 'willfully and maliciously' were intended by the Legislature to be understood as synonymous, and that the statute is to be construed in the same manner as it would be if the word maliciously' had been omitted. Such a construction, we are of opinion, can not be sustained; for if it could be, it would follow, that a person would be liable to be punished criminally, and with great severity, for every willful trespass, however trifling the injury might be, to the personal property of another, which could not be justified or excused, in a civil action against him, for the recovery of damages, by the owner. We do not suppose the learned judge intended to be so understood by the jury; but they might so understand him. As to that part of the instruction, that moral turpitude of mind was not necessary to be shown, whether correctly stated or not, we do not think it material to consider. The question is not whether the jury was rightly instructed as to what facts would constitute malice or be presumptive or conclusive proof of it. The learned judge was probably of opinion, that if the mare was injured, as alleged, by the charge of a gun, loaded with powder and shot, that, ipso facto, would be conclusive proof of malice. But that question, we think, should have been submitted to the jury. The gun might have been loaded for the purpose of shooting small 1 State v. Wilcox, 3 Yerg. 278 (1832); State v. Newby, 64 N. C. 23 (1870); Northcot v. State, 43 Ala. 330 (1869); Hobson v. State, 44 Ala. 380 (1870) State v. Latham, 13 Ired. 33 (1851); Newton v. State, 3 Tex. (App.) 245 (1877); R. v. Pearce, 2 Leach 594 (1789); State v. Robinson, 3 Dev. & B. (L.) 130 (1838). 2 Wright v. State, 30 Ga. 235 (1860); State v. Waters, 6 Jones, 276 (1859). 3 State v. Landreth, 2 Car. L. Repos. 331 (1815). And see Davis v. State, 12 Tex. (App.) 11 (1882). 4 Lott v. State, 9 Tex. (App) 206 (1880); Branch v. State, 41 Tex. 622 (1874). 6 Duncan v. State, 49 Miss. 331 (1873); Branch v. State, 41 Tex. 622 (1874); Thompson v. State, 51 Miss. 353 (1875). 3 Cush. 559 (1849). 7 ch. 126, sec. 39. birds, with a very light charge of powder, and very fine shot, which would not be likely to kill or do great bodily harm; and we do not know, that any great bodily harm was done. The only facts established by the verdict are, that the mare was injured by the defendant, by the discharge of a gun loaded with powder and shot, and that the act was done willfully; but an act may be unlawful, and may be done willfully, with or without malice, according to the evidence of the motive, and of the circumstances attending the transaction. The evidence, thereupon, should have been submitted to the jury, with instructions, that they would not be warranted in finding a verdict of guilty, unless the injury charged in the indictment was done by defendant, not only willfully but also maliciously; that if the injury was done intentionally and by design, and not by mistake, accident, or inadvertence, that would fully support the allegation in the indictment, that it was done willfully, according to the true meaning of the statute. But the jury might infer malice from the fact, that the injury was done by the discharge of a gun loaded with powder and shot unless the inference were rebutted by the evidence, showing that the gun was so loaded that it was not likely to kill or do any great bodily harm; and the jury should have been so instructed. The jury should also have been instructed, that, to authorize them to find the defendant guilty, they must be satisfied, that the injury was done out of a spirit of wanton cruelty or wicked revenge. Malicious mischief, amounting to a crime, is so defined by Blackstone,1 and in Jacob's Law Dictionary, by Tomlin, under the title "Mischief, Malicious; " and we have no doubt that such is the true definition of the crime. § 193. To "maim" an 'Maiming or Wounding" Cattle. Injuring a sheep by setting a dog to " worry "it is not within a statute punishing the "maiming or wound ing" of cattle.3 § 194. "Malicious Injury "— Dog in Pursuit of Game. Damage done by a trespasser's dog in pursuit of game is not a "malicious injury" within the English statute. § 195. Malicious Mischief - Causing Horses to go on "Land of Another without his Consent."— This offense in Texas does not extend to a case where the prisoner has rented the land. In Coggins v. State, it was said by HURT, J., delivering the opinion of the court: "The appellant, J. R. Coggins, was convicted of the offense of knowingly causing horses to go within the enclosed lands of another, without his consent. From the statement of facts we learn that the appellant rented of the prosecutor any amount of land desired, for twelve months, beginning on the 1st day of January, 1881. The land rented by the defendant was enclosed by a fence which enclosed other land not rented by defendant; or, in other words, the defendant did not rent all the land enclosed by the fence which enclosed his land. 14 Bla. Com. 244. 2 R. v. Jeans, 1 C. & K. 538 (1844). There was no cross fence between his land 5 12 Tex. (App.) 109 (1882). • Acts of 1873, pp. 41 and 42; Penal Code, art. 684. |