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and so of putting deleterious acid in a mare's eye. It has also been held that injuring a mare internally, not out of malice, but merely from wantonness, is within the statute.?

The omission to kill a wounded animal which is in great suffering is not cruelty, under the statute.3

It is not necessary to prove, when this is out of the power of the prosecution, the particular instrument of cruelty used. Statutes

Statutes exist both in England and in this country relimiting

quiring common carriers to take due care of animals

under their charge for transportation. Federal statutes to this effect have been held constitutional." To “cruelty," deliberateness and malice are essential, and these

are negatived by proof of passion, arising from provocruelty es- cation or excitement, or that the act was one of discisential to

pline, however ill-judged;' and so when the object was

bona fide, to improve the appearance of the animal.” Drunkenness, when the mind is incapable of intent, is a defence, but not otherwise. But when the object is simply to use the animal

common carriers.

Wanton

offence.

7

? R. v. Owens, 1 Mood. C. C. 205. quiring carriers to provide food and

? R. v. Welch, L. R. 1 Q. B. D. 23; water to cattle, see Johnson v. Colam, 13 Cox C. C. 121. Shaving a horse's L. R. 10 Q. B. 544; Swan v. Saunders, tail is “disfiguring,” within the stat- 14 Cox C. C. 560. ute. Boyd v. State, 2 Humph. 39, 6 Duncan v. State, 49 Miss. 331, 1840.

1873; Thompson v. State, 51 Ibid. 3 Powell v. Knight, 38 L. T. (N. S.) 353, 1875. That under these particu607, 1878. It is otherwise when the lar statutes malice to the owner need owner sends out a wounded or diseased not be shown, see R. v. Tivey, 1 C. & horse to graze, thereby causing it in- K. 704; 1 Den. C. C. 63; Brown v. tense pain, which is held to be “tor- State, 26 Ohio St. 176, 1875. Supra, turing” under the statute. Everitt v. & 1070. Davies, 38 L. T. (N. S.) 360, 1878 It Supra, 33 106 et seq.; State v. Avery, is not an offence to neglect to feed an 44 N. H. 392, 1862 (under a statute animal if the person complained of which makes it penal to wilfully and has not the charge and custody of maliciously kill, maim, beat, or wound such animal. State v. Haskell, 76 Me. any horse, cattle, sheep, or swine). 399, 1884.

8 R. v. Mogg, 4 C. & P. 364. A cus4 See R. v. Bullock, L. R. 1 C, C. tomary operation performed with rea115; 11 Cox C. C. 125. The indict- sonable care upon an animal to inment need not state the means and in- crease its value is not cruelty within struments made use of. State v. Fal- the statute, though painful and in fact kenham, 73 Md. 463, 1891.

useless. Lewis v. Fermor, L. R. 18 5 U.S.v. Boston, etc., R. R , 15 Fed. Q. B. D. 532, 1887. Rep. 209, 1883.

State v. Avery, 44 N. H. 392, 1862, For proceedings under statute re- citing R. v. Thomas, 7 C. & P. 817.

“ Disci

more effectively for sport (e. g., cutting the combs of cocks so as to fit them better for fighting), this is no defence.

When the cruelty is such as is incident to the subjugation or destruction of the animal for the purposes of use or food (e. 9., trapping or taming wild creatures, catching of fish pline" or by hooks laid at night), or to preclude its depredations or necessity as ward off its attacks, this may be defended on ground of duty or necessity. When the injury is inflicted with malignity, so as to torture, it is no defence that the animal injured was trespassing on the defendant's field. But all proper force may be used to eject an animal doing damage to an inclosed field; and it may even be killed if it cannot otherwise be excluded.4

3

4 4

Murphy v. Manning, L. R 2 Ex. ? Supra, ?? 95 et seq.; Janson v. D. 307; 36 L. T. (N. S.) 592; State v. Brown, 1 Camp. 41; Protheroe v. Porter, 112 N. C. 887, 1893. But how Mathews, 5 C. & P. 581 ; Stephens v. is it with cutting the ears and tails of State, 65 Miss. 329, 1888. See arguterriers ?

ment of Hoar, J., in Com. v. Lufkin, In Pitts v. Millar, L. R. 9 Q. B. 380; 7 Allen, 579, 1863; and see Com. v. 30 L. T. (N. S.), 328 Cockburn, C. J., Wood, 111 Mass. 408, 1873; Walker went so far as to hold that putting v. Court of Special Sessions, 4 Hun, rabbits into an inclosed field and then 441, 1875. setting two dogs at them to see how Snap v. People, 19 Ill. 80, 1857; many each dog could kill, was not Thompson v. State, 67 Ala. 106, 1880. “baiting" under the statute. That See Davis v. State, 12 Tex. App. 11, worrying” animals with dogs may 1882; State v. Butts, 92 N. C. 784, be cruelty, see Elmsley's Case, 2 Lew. 1885. Supra, & 1072. C. C. 126. See U. S. v. McDuell, 5 Reedy v. State, 22 Tex. App. 271, Cranch C. C. 391, 1839.

1886; Farmer v. State, 21 Tex. App. That cock-fighting is cruelty to the 423, 1886; McMahan v. State, 29 Tex. animal, apart from the question of App. 348, 1891. In Benson v. State, public scandal, and of gambling, see 1 Tex. App. 6, 1876, the court said: Budge v. Parsons, 3 B. & S. 382. But “It may be done under such circumsee Morley v. Greenhalgh, 3 B. & S. stances as negative a wanton act—as 374; Clarke v. Hague, 8 Cox C. C. where a man has a good fence, and a 324; 2 E. & E. 281; and see infra, horse or cow is in the habit of tres& 1465 a.

passing upon his crop, and he kills it Letting loose a fox for the purpose during an act of trespass on his crop, of being hunted by dogs that tear it not from wantonness, but to prevent to pieces is punishable under the Mas- the destruction of his crop, he would sachusetts statute. Com. v. Turner, not be criminally liable.” See Branch (Mass ) 14 N. E. Rep. 130, 1887. But v. State, 41 Tex. 622, 1874. See, as in Pennsylvania, wounding a pigeon to placing poisoned meat, Daniel v. at a shooting match, the bird being James, L. R. 2 C. P. D. 351 ; State v. afterward killed, was held not to be La Bounty, 63 Vt. 374, 1891. The an indictable offence. Com. v. Lewis, indictment need not specifically name 140 Pa. 261, 1891.

the poisonous substance, or that it VOL. II.-2

17

Indictment must conform to statute.

Under statutes making indictable cruelty to animals, irrespective

of ownership, it is not necessary to aver the owner's name. When, however, the ownership is inaccurately stated, this may be a variance. Nor is it necessary,

particularly, to describe the animal injured; though if there be inserted a description of the animal likely to mislead, a variance might be fatal. “Maiming” is not held to be a sufficient designation of the injury; though it is otherwise as to “killing.”6 When the statute prohibits “cruelly beating,” it is enough to aver that the defendant did “cruelly beat," etc.? This, however, may be doubted when the pleader could readily have individuated the offence. “Cruelly over-drive” has been held to be enough when the statute prohibits cruel over-driving “Maliciously” is essential ;10 but not alternative or cumulative predicates of the statute when not part of the case." It is not duplicity to join the overdriving of two horses in a team in one indictment ;'2 nor to aver the poisoning of eight horses, when the poison was distributed in the feed placed before the whole eight..

13

was

9

10

a substance that would kill. ? Com. v. McClellan, 101 Mass. 34, People v. Keeley, 81 Cal. 210, 1889. 1869. As to spring guns, see supra, 8 464. 8 See Whart. Cr. Pl. & Pr. & 221.

i State v. Avery, 44 N. H. 392, 1862; State v. Comfort, 22 Minn, 271, Com. v. McClellan, 101 Mass. 34, 1869; 1875. Com. v. Whitman, 118 Ibid. 458, 1875; Thompson's Case, 51 Miss. 353, State v. Brocker, 32 Tex. 611, 1870; 1875. See State v. Rector, 34 Tex. Darnell v. State, 6 Tex. App. 482, 565, 1871. 1879.

11 Rembert v. State, 56 Miss. 280, ? Smith v. State, 43 Tex. 433, 1875; 1879. Collier v. State, 4 Tex. App. 12, 1878. 12 People v. Tinsdale, 10 Abb. Pr.

See, however, R. v. Chalkley, R. (N. S.) 374, 1868; State v. Comfort, & R. C. C. 258.

22 Minn, 271, 1875; Whart. Cr. Pl. & 4 Whart. Crim. Ev. % 146.

Pr. 2 254. 5 See State v. Pugh, 15 Mo. 509, 13 R. v. Mogg, 4 C. & P. 364. 1852.

Cruelty to animals may involve con6 Com. v. Sowle, 9 Gray, 304, 1857. tinuous action; and a count alleging Supra, & 1080. Where the word of the various acts of cruelty, charges the statute is "wound,” an indictment but a single offence. State v. Bosfor shooting a cow was held sufficient. worth, 54 Conn. 1, 1886. State v. Butts, 92 N. C. 784, 1885.

8

POINTS REQUESTED FOR THE DEFENCE IMPROPERLY

REFUSED, AND ERRONEOUS CHARGES.

When the statute named the places in which the offence of destroying grain might be committed as “the garden, orchard, or other improved land of another," the defendant requested the court to charge the jury that if they found the entry and damage were within the limits of the highway, and not on the field side of the line, they could not convict the defendant of maliciously destroying the wheat. Refused. Held error. People v. O'Brien, 60 Mich. 8, 1886.

Malice.

Defendant was indicted for tearing down a sheriff's advertisement. His defence was that he took it down to show it to his counsel, and with no evil intent. The court charged: “The act must be malicious, but not in the sense which the counsel of the defence has argued to you. What is meant in the law by malice? It only means that a person has the intention to do the act; that he wilfully does the act, which is illegal. He may not know that the act is illegal, but if he wilfully does the act his conduct is, in the eye of the law, illegal. ... The malice mentioned by the statute is an intentional taking down of such advertisement, knowing it to be such.” Held error. Folwell v. State, 49 N. J. 31, 1886.

In an indictment under a statute prohibiting the malicious breaking or throwing down of a fence erected for an inclosure of land, the defence was that the act was done under right of title to the land. The court charged that “this act of assembly was passed to meet precisely such cases as this.” Held to be error, as the question was for the jury. Com. v. Drass, 146 Pa. 55, 1892.

An indictment for malicious mischief in shooting a horse. The court defined the term “wilful” as follows: “With evil intent, legal malice, etc.” Held the definition was too restricted. Also, the defendant asked the court to charge that if it reasonably appeared to the defendant that his horse was in danger of serious injury, and he inflicted the wound upon the attacking horse to protect his own horse from the threatened injury, defendant should be acquitted. Refused. Held error. Farmer v. State, 21 Tex. App. 423, 1886.

Under Code forbidding cruelty to animals defendant was indicted for killing hogs trespassing on his land after he had vainly tried to drive them away. Defendant requested the court to instruct the jury that the evidence showed that he killed the hogs to protect his crops, etc., and not out of a spirit of cruelty to the hogs, they should acquit him. Refused. Held to be error. Stephens v. State, 65 Miss. 329, 1888.

CHAPTER XVII.

FORCIBLE ENTRY AND DETAINER.

as

I. CHARACTER OF OFFENCE.

When there is right of entry, vioForcible exclusion of another lence is essential to offence, from his lands and tenements

1099. is an offence at common law, Tenant at will cannot be expelled % 1083.

by force, & 1100. Modification of common law by Owner may forcibly enter statutes, & 1084.

against intruder, & 1101. Gist of offence is the violence, Legal right to enter is essential & 1085.

to writ of restitution, & 1102. Statutory offence requires less Forcible detainer to be inferred

force than common law, but from facts, & 1103.
either freehold or leasehold At common law possession is
title, & 1086.

necessary

to prosecution, Any person forcibly putting an- % 1104.

other out of possession is in- Title is not at issue, & 1105.
dictable, & 1087.

Prosecutor may prove force, Wife may be so indicted against

$ 1106. her husband, & 1088.

II. INDICTMENT. So as to tenant in common eject- Indictment must contain teching his companion, & 1089.

nical terms, % 1107. So as to third person dispossess- For common law offence, possesing officer of law, & 1090.

sion only need be averred, Real estate, corporeal or incorpo- & 1108.

real, may be thus protected, Possession must be described as % 1091.

in ejectment, & 1109. To forcible trespass on personalty Entry and detainer are divisible, force is essential, & 1092.

& 1110. And so to forcible entry, $ 1093. Title is necessary to restitution, Force may be inferred from facts, % 1111. & 1094.

Indictment for forcible trespass Rule does not apply to out- must aver violence, & 1112. houses, % 1095.

Practice to sustain summary conEntry by trick is not forcible, victions, 2 1113. & 1096.

POINTS FOR DEFENCE IMPROPERLY Peaceable entry may be followed REFUSED,

ERRONEOUS by forcible detainer, $ 1097. CHARGES. (See end of chapter.) Forcible continuance may be for

cible entry, & 1098.

AND

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