Gambar halaman
PDF
ePub

of offence.

All kinds already shown,' may be thus protected, but so may real are subjects estate, it being held that it is indictable at common law

maliciously to injure or deface tombs,maliciously to strip from a building copper pipes or sheetings, and maliciously to damage either immovables or movables in any way. The authorities in reference to the malicious injury of trees and plants are elsewhere given.

§ 1077. In prosecutions of this class the prosecutor's title to the Owner's

property injured cannot be tried. It is enough if he had title is im- any special interest, rightful or wrongful, which may

have been hurt. § 1078. The manner of describing the property injured has been Indictment

already stated.

The nature of the injury must be specified.”

An indictment is sufficiently descriptive of the propaverments.

erty destroyed, if laid to be “one horse beast of the value of, etc., of the proper goods and chattels.” But unless required by statutory direction, the averment of value is unessential.10

The owner of the property must be alleged," if known, and the allegation must be proved as laid.12

material.

6

must contain proper technical

7

See supra, 29 1067, 1068. That State v. Gurnee, 14 Kans. 111, 1874; there is such a property in dogs as State v. Semotan, 85 Iowa, 57, 1892. sustains an indictment for malicious As to “title," see supra, 932. mischief, see State v. Latham, 13 Ired. Supra,& 977. 33, 1851; State v. Sumner, 2 Ind. 377, 8 Brown v. State, 76 Ind. 85, 1881. 1850; State v. McDuffie, 34 N. H. 523, 9 State v. Pearce, Peck, 66, 1823; 1857; Julienne v. Jackson, 69 Miss. and where the statute uses the word 34, 1891; Nehr v. State, 35 Nebr. “cattle," the word “cattle-beast” in 638, 1892; though see, contra, under the indictment sufficiently designates statute, Com. v. Maclin, 3 Leigh, 809, the kind of animal killed. State v. 1831 ; U. S. v. Gideon, 1 Minn, 292, Credle; 91 N. C. 640, 1884. 1856; and supra, 872; infra, & 1082 d, Sample v. State, 104 Ind. 289, for statutes.

1885. See State v. Blackwell, 3 Ind. 3 Inst. 202.

529, 1852; and State v. Shadley, 16 * R. v. Joyner, J. Kel. 29.

Ibid. 230, 1861. * Loomis v. Edgerton, 19 Wend. 419, 11 R. v. Patrick, 2 East. P. C. 1059; 1838.

Davis v. Com., 30 Pa. 421, 1858; and Supra, & 1067 ; infra, & 1082 c. see, as to when designation of locality 6 People v. Horr, 7 Barb. 9, 1849; is required, Com. v. Bean, 11 Cush. Dawson v. State, 52 Ind. 478, 1876; 414, 1853; Com. v. Dougherty, 6 Gray,

10

2

5

12 Haworth v. State, Peck, 89, 1823; State v. Weeks, 30 Me. 182, 1849. Contra, under the Iowa Code, if the offence is otherwise described with sufficient certainty. State v. Semotan, 85 Iowa, 57, 1892.

$ 1079. An indictment for malicious mischief must either expressly charge malice in the defendant against the owner,

Malice or otherwise fully describe the offence as indicating gen- must usueral malice. It is not sufficient, at common law, to set ally be

. forth that the act was done “wilfully and maliciously,without averring that it was done with malice against the owner or possessor. When, however, the term “ maliciously” is not in the statute, it will be both sufficient and essential to use the statutory terms; and when “wilful” is in the statute, it must be averred.

$ 1080. It is not enough to aver that the defendant maliciously “ injured” the prosecutor's property. This is a conclu

Mode of sion of law, and the facts leading to it must be expressed. injury

must be Yet the means or instruments of injury need not be set

averred. out.? Where there is a killing, as a statutory offence, it is enough to say, “maliciously and wilfully did kill," and where there is a cutting down of trees, under a statute, it is enough to aver, following the statute, that the defendant, the trees, etc., maliciously and wilfully did cut, etc.' 349, 1856; Com. v. Cox, 7 Allen, 577, Woolsey v. State. 14 Tex. App. 1863. But where a corporation is the 57, 1883. In such case the charge of owner, it is necessary only to allege, the court should explain to the jury in substance, that the company is a the legal meaning of the term “wilcorporation, without any allegation fully.” Browder v. State, 30 Tex. as to the legality, regularity, or facts App. 614, 1892. of its corporate organization. The 5 See State v. Langford, 3 Hawks, naming of the owner is material only 381, 1824; State v. Jackson, 7 Ind. as a part of the description or identi- 270, 1855. fication of the thing injured, as being 6 See Whart. Cr. Pl. & Pr. 8? 154, within the prohibition of the statute. 230; State v. Aydelott, 7 Blackf. 157, Duncan v. State, 29 Fla. 439, 1892. 1844. But see Kiser v. State, 89 Ga. 421, ? State v. Merrill, 3 Blackf. 346, 1892.

1834; State v. Greenlees, 41 Ark. 353, ? Supra, 2 1070 ; R. v. Lewis, 2 Russ. 1883. Under a statute, “cut, injure, on Cr. 1066; Boyd v. State, 2 Humph. and destroy ” is enough. State v. 39, 1840 ; Thompson v. State, 51 Miss. Jones, 33 Vt. 443, 1860. 353, 1875. See State v. Allison, 90 N. 8 Com. v. Sowle, 9 Gray, 304, 1857 ; C. 733, 1884.

Hayworth v. State, 14 Ind. 590, 1860; * State v. Jackson, 12 Ired. 329, Taylor v. State, 6 Humph. 285, 1845; 1851; though see State v. Scott, 2 Whart. Prec. 477. Dev. & Bat. 35, 1836.

9 State v. Watrous, 13 Iowa, 489, 3 Com. v. Turner, 8 Bush, 1, 1871. 1862. See State v. Jones, 33 Vt. 443, So with respect to the word “unlaw- 1860. And as to indictments generfully.” State v. Martin, 107 N. C. ally, see Com. v. Thornton, 113 Mass. 904, 1890.

457, 1873; Com. v. Whitman, 118

§ 1081. At common law an intentional obstruction of a railroad

train, in such a way as to endanger the lives of travellers, Statutory offence of is as much an assault on such travellers as would endangering lives of be shooting into a car. The common law offence, howtravellers. ever, has been generally superseded by statutes both in

England and the United States. Under these statutes it has been ruled that it is no defence that the defendant was impelled by other motives than an intention to injure the train.” Wilfully throwing a stone at a train so as to endanger the safety of passengers is within the statutes, as it is unquestionably indictable at common law. It has been further held that on an indictment for wilfully and maliciously casting anything upon a railway carriage or truck, either with intent to injure it or to endanger the safety of persons in the train, if an intent to endanger the safety of travellers be proved, it is no defence that the train was a goods train, and there was no person on the particular truck. But where the indictment charges maliciously throwing stones into a railway carriage, with intent to endanger the safety of a person in it, it has been ruled that there must be evidence of an intent to do some grievous bodily harm, such as would support an indictment for wounding a particular person with that intent; and, if it appear that the prisoner's intention was only to commit a common assault on some person in the carriage, the case is not sustained.”

The statutes, also, have been ruled not to cover neglect on part of drivers and stokers to keep a good lookout for signals, according to the rules and regulations of the railway company, the conse

Ibid. 458, 1875; State v. Comfort, 22 Where the indictment charges an Minn. 271, 1875; Caldwell v. State, 49 act done wantonly and wilfully the Ala. 34, 1871. Where the words of a evidence must show that it was so statute are descriptive of the offence done. North Carolina v. Vanderford, the indictment should follow its lan- 35 Fed. Rep. 282, 1888. guage and expressly charge the de- See supra, & 608. scribed offence so as to bring it within ? R. v. Holroyd, 2 M. & Rob. 339. all the material words of the statute. See supra, % 119. State v. Deal, 92 N. C. 802, 1885. But 3 R. v. Bowray, 10 Jur. 211. where the words of a statute do not * See supra, 8% 112, 608. clearly and definitely apprise the ac- 5 R. v. Sanderson, 1 F. & F. 37— cused of the offence charged against Channel. This accords with the rule him greater particularity must be stated supra, & 186 ; but see, contra, R. used in the indictment. State v. Cos- v. Court, 6 Cox C. C. 202. tello, 62 Conn. 128, 1892.

6 R. v. Rooke, 1 F. & F. 107.

quence of which neglect is that a collision occurs, and the safety of passengers is endangered.

It is not necessary, it has been ruled under the statutes, to aver in the indictment that the train belonged to a corporation duly chartered.

$ 1082. Special statutes, also, have been enacted in England, and have been adopted by several of our own legislatures, Obstructmaking indictable the obstruction of engines and railway ing engine

or railroad carriages.

carriage Under these statutes it is held to be a misdemeanor to

indictable. place a truck across a railway line in such a manner that if a carriage or an engine had come along the line it would have been obstructed, and the safety of passengers, who might have been in any such carriage, would have been endangered ;- nor is it to this charge a defence that the railway was not opened for passenger traffic, and no carriage or engine was in fact obstructed. It is enough to sustain such a case to prove that the act was done by certain persons employed by the defendant to repair a wall between the railway and his premises adjoining; and that on one occasion the defendant himself, who was standing by, nodded his head, and directed the workmen to go on, is sufficient to warrant the jury in convicting the defendant. Placing a single piece of timber on the road will constitute the offence;' and so of obstructing a horse railroad by putting a wagon on its track, it being the duty of wagons to turn out when requested by the driver of the horse-car. Changing a signal so as to cause a train to go slower than it otherwise would is an obstructing;" and so, it is said, is stretching out the arms as a signal.10 It has been held, however, that it is not indictable for a passenger

R. v. Pardenton, 6 Cox C. C. 247. complete when the obstructions were * R. v. Bowray, 10 Jur. 211. See placed, and a specific intent to injure Kiser v. State, 89 Ga. 421, 1892. the railroad, or to kill or cripple its

* For homicide resulting from such employés or passengers, was not necesmisconduct, see supra, %% 337 et seq. sary. Crawford v. State, 15 Lea,

. It is not necessary to specify in (Tenn.) 343, 1885; State v. Johns, the indictment the persons whose (Mo.) 27 S. W. Rep. 1115, 1894. lives were endangered. Barton v. 6 Roberts v. Preston, 9 C. B. (N. S.) State, 28 Tex. App. 483, 1890.

208. • R. v. Bradford, 8 Cox C. C. 309. ? Allison v. State, 42 Ind. 354, 1873. Nor is it a defence that the prisoner 8 Com. v. Temple, 14 Gray, 69, 1859. had placed the obstructions with the 9 R. v. Hadfield, L. R. 1 C. C. 253. purpose of warning the train and 10 R. v. Hardy, L. R. 1 C. C. 278. securing a reward; the offence was

So malicious in

manufac.

to pull a signal rope attached to a bell on the engine. The intent is to be in ferred from the facts; and where the evidence was that the prisoners placed a stone upon a line of railway, so as to cause an obstruction to any carriages that might be travelling thereon, it was ruled that if this were done mischievously, and with an intention to obstruct the carriages of the company, the jury would be justified in finding that it was done maliciously. But the presumption, in such case, is one of fact, not of law. Title to the land is no defence.4 § 1082 a. For the protection of manufactures and machinery

analogous statutes have been enacted. Under these stat

utes the following points have been ruled : jury to

A warp, not sized, but upon its way to the sizers, to tures, ma- fit it for being used in manufacturing goods, is not a terials, and machinery warp in

any stage, process, or progress of manufacture,” or prepared for carding or spinning. It is not necessary that goods should be incomplete to be in “a stage, process, or progress of manufacture," under the statute. The working tools of a loom, and the cords employed to raise the harness, are "tackle employed in weaving.? And so of any material part of the machinery.S

In another case in England the owner removed a wooden stage belonging to the machine on which the man who fed the machine was accustomed to stand, and took away the legs, and it appeared in evidence that though the machine could not be conveniently worked without some stage for the man to stand on, yet that a chair or table, or a number of sheaves of corn would do nearly as well, and that it could also be worked without the legs: it was held, that the machine was an entire one within the act, though the stage and legs were wanting. And where certain side boards were wanting to a machine at the time it was destroyed, but the want did not render it so defective as to prevent it altogether from working, though it would not work so effectually as if those boards had been made good; it was held that it was still a threshing-machine within

1 Com. v. Killian, 109 Mass. 345, 4 State v. Hessenkamp, 17 Iowa, 25, 1872.

1864. ? R. v. Upton, 5 Cox C. C. 298. 5 R. v. Clegg, 3 Cox C. C. 295. See

3 Allison v. State, 42 Ind. 354, R. v. Ashton, 2 B. & Ad. 750. 1873. Under the Texas statute the 6 R. v. Woodhead, 1 M. & Rob. 549. obstruction must be of a character ? R. v. Smith, 6 Cox C. C. 198. likely to endanger life. Bullion v. 8 R. v. Tracy, R. & R. C. C. 452. State, 7 Tex. App. 462, 1879.

9 R. v. Chubb, Deac. C. L. 1518.

« SebelumnyaLanjutkan »