Gambar halaman
PDF
ePub

Offence in

cludes ma

licious

physical injury to the rights of another person or

to those

of the

public.

§ 1067. In its general application malicious mischief may be defined to be any malicious or mischievous physical injury, either to the rights of another or to those of the public in general. Thus, it has been considered an offence at common law to maliciously destroy a horse belonging to another;' or a cow; or a steer; or any beast whatever which may be the property of another; to wantonly kill an animal where the effect is to disturb and molest a family to be guilty of wanton cruelty to animals, either publicly (when the animal belongs to the defendant himself), or secretly, through specific malice against another person who is the owner, in such case mere wantonness not being sufficient; to maliciously cast the carcass of an animal into a well in daily use; to maliciously poison chickens, fraudulently tear up a promissory note, or break windows; to mischieviously set fire to a number of barrels of tar belonging to another;1o to maliciously girdle or injure trees or plants kept either for use or ornament; to put cow-itch on a towel, with intent to injure a person about to use it ;12 to maliciously break up boat;13 to maliciously cut off the hair of the tail or mane of a horse, with intent to annoy or distress the owner;1 to discharge a gun with

1 Resp. v. Teischer, 1 Dall. 359, 1788; State v. Council, 1 Overton, (Tenn.) 305, 1808.

2 Com. v. Leach, 1 Mass. 59, 1804; People v. Smith, 5 Cow. 258, 1825. State v. Scott, 2 Dev. & Bat. 35, 1836; contra, State v. Wheeler, 3 Vt. 344, 1831.

* But see a learned article in 7 Law Rep. (N. S.) 87-93. As to dogs, see infra, 1076; supra, & 872. Cf. Mr. Gerry's argument in Davis v. Society for Prevention of Cruelty, etc., 75 N. Y. 362, 1878.

a

[blocks in formation]

5 Henderson's Case, 8 Gratt. 708, indictable to maliciously cut down a 1852.

[blocks in formation]

crop of Indian corn standing in a
field. But see People v. O'Brien, 60
Mich. 8, 1886. See infra, ¿ 1082 c.
12 People v. Blake, 1 Wheel. C. C.
490, 1823.

13 Loomis v. Edgerton, 19 Wend. 419, 1839.

14 Boyd v. State, 2 Humph. 39, 1840. This, however, was under a statute prohibiting "disfiguring." Infra, 1082 d.

the intention of annoying and injuring a sick person in the immediate vicinity; to maliciously and indecently break into a room with violence for the same purpose; though it is held not an indictable offence to remove a stone from the boundary line between the premises of A. and B. with intent to injure B.3

But offence must be with

owner, or involve a breach of

§ 1068. The recent inclination, however, so far as the common law is concerned, is to restrict the party injured to his civil remedies, except (1) where the offence is committed malice to secretly, in the night-time, or in such other way as to inflict peculiarly wanton injury, so as to imply malice to the owner; or (2) where it is accompanied with a breach of the peace. the peace. Thus, in New York, an indictment charging that the defendant, "with force and arms, unlawfully, wilfully, and maliciously, did break in pieces and destroy two windows in the dwelling-house of M. C. to the great damage of the said M. C., and against the peace," etc., was held not to set forth an offence indictable by the laws of the State; it being held that an act which would otherwise be only a trespass does not become indictable by being charged to have been done with force and arms, or by being alleged to have been committed maliciously, or without claim of right, or without any motive of gain. Whether if the breaking of the windows in this case had been charged to have been done secretly, or in the night-time, the act would have been indictable was doubted by Beardsley, C. J., it being said generally that the cases in which indictments have been sustained for maliciously killing or wounding domestic animals depend upon features peculiar to such offences, as the depravity of mind, and the cruelty of disposition, which such acts evince. Maiming or wounding an animal, also, without killing it, was held in New Jersey, in 1858, to be not indict

1 Com. v. Wing, 9 Pick. 1, 1829. Supra, 167.

See People v. Moody, 5 Parker C. R. 568, 1864, where an indictment for

2 Com. v. Taylor, 5. Binn. 277, 1812. wantonly and clandestinely injuring See infra, 1093.

harness in the daytime was held good at common law. And see State v. Newby, 64 N. C. 23, 1870; Northcot v. State, 43 Ala. 330, 1869. Under the English statutes, see R. v. Martin, L. R. 8 Q. B. D. 54.

State v. Burroughs, 2 Hals. 426, 1802. Maliciously tearing down, injuring, and breaking telephone wires are indictable as malicious mischief at common law. State v. Watts, 48 Ark. 56, 1886. So with wilfully and ma- 5 Kilpatrick v. People, 5 Denio, 277, liciously tearing down a constable's 1848. See this case commented on in notice of sale. Com. v. Johnson, 3 5 Parker C. R. 568, 1864.

Pa. Dist. Rep. 222, 1893. See, also,

Folwell v. State, 49 N. J. L. 31, 1886.

able either at common law or under the statute law of that State.1 And it is held in other States that at common law an injury to personal property, to be indictable, must be marked by special malice to the owner, or accompanied by or provocative of a breach of the peace.2

Distin

guishable

§ 1069. It has been shown that whenever goods are fraudulently taken against the owner's will animo furandi, the offence is larceny; while when they are simply maliciously injured, without being taken animo furandi, it is malicious from mischief. It must also be noticed that there are articles of property not objects of larceny (e. g., real estate, dogs, etc.), for maliciously injuring which a person may be indicted.

larceny by absence of intent to

steal.

§ 1070. Neither negligent injury, nor an injury inflicted angrily in hot blood, is sufficient to constitute the offence.

1 State v. Beekman, 3 Dutch. (N. J.) 124, 1858. See, also, to same effect, R. v. Ranger, 2 East P. C. 1074; State v. Allen, 72 N. C. 114, 1875.

State v. Phipps, 10 Ired. 17, 1849; Dawson v. State, 52 Ind. 478, 1876; Illies v. Knight, 3 Tex. 312, 1848; State v. Enslow, 10 Iowa, 115, 1860; State v. Williamson, 68 Iowa, 351, 1886. Under the latter head fall cruel games, such as cock-fighting. Infra, 1465 a. * But see, as to some extent conflicting with views of the text, State v. Leavitt, 32 Me. 183, 1851.

* See infra, ?? 1076, 1082 d.

5 Com. v. Walden, 3 Cush. 558, 1849; State v. Robinson, 3 Dev. & Bat. 130, 1838; Wagstaff v. Schippel, 27 Kans. 450, 1882. See Davis v. Society for Prevention of Cruelty, etc., 75 N. Y. 362, 1879; 21 Alb. L. J. 265.

In R. v. Pembliton, 12 Cox C. C. 607; L. R. 2 C. C. R. 119, the defendant was indicted for unlawfully and maliciously committing damage upon a window in the house of the prosecutor, contrary to the 23 & 24 Vict. c. 97, s. 51. It appeared that the de

There must be

fendant, who had been fighting with other persons in the street, after being turned out of a public house, went across the street, and picked up a stone, and threw at them. The stone missed them, passed over their heads, and broke a window in a public house. The jury found that he intended to hit one or more of the persons he had been fighting with, and did not intend to break the window. It was held by all the judges, that upon this finding the prisoner was not guilty of the charge within the above statute. It was held, also, that to support a conviction under sec. 51, there must be a wilful and intentional doing of an unlawful act in relation to the property damaged. See supra, ? 120.

In Com. v. Williams, 110 Mass. 401, 1872, it was held that for a conviction under the statute of 1862, c. 160, which provides for the punishment of any one who "wilfully or maliciously injures" a building, it is not enough that the injury was wilful and intentional, but it must have been done out of cruelty, hostility, or revenge.

Malice is

malice to the owner or possessor, though such owner or possessor is personally unknown to the wrongdoer; but there is essential to ground to argue that malignant cruelty to an animal is the offence. indictable at common law, irrespective of particular malice to the owner, when there is shock or scandal to the community ;* and that a man may in such cases be indicted for malicious cruelty to an animal belonging to himself. The same reasoning would lead us to conclude that malignant and intentional injury to public works of art, or to public libraries, is indictable, irrespective of malice to individuals.

§ 1071. The usual line of evidence as to proof and disproof of malice is here admissible." Malice may be inferred from be inferred declarations; from prior acts; and even from the peculiar

Malice is to

from facts. malignity of the act.7

§ 1072. Malice may be negatived by showing that the acts was

R. v. Tivey, 1 C. & K. 704; U. S. v. Jackson, 4 Cranch C. C. 483, 1836 ; Stage Horse Cases, 15 Abb. Pr. (N. S.) 51, 1873; Brown v. State, 26 Ohio St. 176, 1875. As to cruelty in dog and cock-fighting, see infra, ? 1465 a.

5 State v. Avery, 44 N. H. 392, 1863. Under statute malice to owner may not be essential. R. v. Tivey, 1 C. & K. 704, cited infra, ? 1082 d.

1 R. v. Austen, R. & R. 490; are regarded as convertible with Pearce's Case, 2 East P. C. 1075; State " maliciously." Thomas v. State, 14 v. Beekman, 3 Dutch. 124, 1858; State Tex. App. 200, 1883. v. Latham, 13 Ired. 33, 1851; State v. 2 Stone v. State, 3 Heisk. 457, 1872. Robinson, 3 Dev. & Bat. 130, 1838; 3 State v. Linde, 54 Iowa, 139, 1880. State v. Hill, 79 N. C. 656, 1879; State v. Newby, 64 Ibid. 23, 1870; State v. Sheets, 89 Ibid. 543, 1883; State v. Doig, 2 Rich. (S. C.) 179, 1845; State v. Pierce, 7 Ala. 728, 1845; Northcot v. State, 43 Ibid. 330, 1869; Hobson v. State, 44 Ibid. 380, 1870; State v. Wilcox, 3 Yerg. 278, 1832; Duncan v. State, 49 Miss. 331, 1873; Wright v. State, 30 Ga. 325, 1860; Chappell v. State, 35 Ark. 345, 1880; Branch v. State, 41 Tex. 622, 1874; State v. Enslow, 10 Iowa, 115, 1860; U. S. v. Gideon, 1 Minn. 292, 1856; State v. Williamson, 68 Iowa, 351; 1886; 210, 1889. though, under Tennessee statute, C. C. 121; see State v. Council, 1 Overton, 354, 1873. (Tenn.) 305, 1808; Hampton v. State, 10 Lea, 639, 1882. In England by statute (R. v. Tivey, 1 C. & K. 705) malice to the owner need not now be proved. As to Alabama, see Tatum v. State, 66 Ala. 465, 1880. In Texas the qualifying terms of the statute are "wilfully" and "wantonly." These Vanderford, 35 Fed. Rep. 282, 1888.

6

See, fully, Whart. Crim. Ev.

7 State v. Williamson, 68 Iowa, 351, 1886; Territory v. Olsen, 6 Utah, 284, 1889; People v. Keeley, 81 Cal. See R. v. Welch, 13 Cox Allison v. State, 42 Ind. See, for other cases, infra,

1082 d.

8 As, the protection of property against a persistent and defiant trespass upon the rights of its owner. People v. Kane, 142 N. Y. 366, 1894; see, also, Brady v. State, (Tex.) 26 S. W. Rep. 621, 1894; North Carolina v.

May be negatived by proof of

other

induced by other causes; e. g., that an animal killed was vicious, and was trespassing on the defendant's grounds, threatening hurt which could not otherwise be averted.' But unless an animal thus trespassing is vicious, and cannot be safely driven out, so that killing or maiming him is motives. the defendant's only safe means of riddance, killing or maiming is not justifiable, because the animal trespassed even within a cultivated inclosed field. And malice may also be disproved, by proof that the object of the defendant was not malicious but friendly. And on a charge of cruelly over-driving a horse, ignorance and want of malice are a defence.*

6

§ 1072 a. An honest belief in title is a defence to an indictment for a malicious trespass." And this is peculiarly the case when the trespass is the removal of fences. § 1073. Consent of owner, when malice against the owner is alleged, is a defence. But the onus of proving consent is on the defendant.7

§ 1074. To sustain a conviction, there must be proof of injury done to such an extent as to impair utility, or materially diminish value.8

§ 1075. As in larceny, the owner of the property injured may be a witness for the prosecution." § 1076. Not merely personal property, as has been

1 R. v. Prestney, 3 Cox C. C. 505; Wright v. State, 30 Ga. 325, 1860; Farmer v. State, 21 Tex. App. 423, 1886; Reedy v. State, 22 Tex. App. 271, 1886; McMahan v. State, 29 Tex. App. 348, 1891. See State v. Waters, 6 Jones, (N. C.) 276, 1859; Hodge v. State, 11 Lea, 528, 1883; Thomas v. State, 14 Tex. App. 200, 1883. Infra, 2 1082 d.

* Snap v. People, 19 Ill. 80, 1857.

3

3 R. v. Mogg, 4 C. & P. 364.

[blocks in formation]

1878; Goforth v. State, 8 Humph. 37, 1847; Malone v. State, 11 Lea, 701, 1883; Dawson v. State, 52 Ind. 478, 1876; Barlow v. State, 120 Ind. 56, 1889.

"In Palmer v. State, 45 Ind. 388, 1873, the point in the text is sustained by Downey, C. J., citing Howe v. State, 10 Ind. 492, 1858. Windsor v. State, 13 Ibid. 375, 1859. Tearing down a fence in the exercise of a supposed legal right is not indictable

4 * Com. v. Wood, 111 Mass. 408, under the Pennsylvania statute. Com. 1873.

5 Infra, 1077; R. v. Langford, 1 C. & Marsh. 602; R. v. Matthews, 14 Cox C. C. 5; Dye v. Com., 7 Gratt. 662, 1851; Sattler v. People, 59 Ill. 68, 1871; Howe v. State, 10 Ind. 492, 1858; Windsor v. State, 13 Ibid. 375, 1859; Lossen v. State, 68 Ibid. 437,

v. Drass, 146 Pa. 55, 1892.

7 State v. Whittier, 21 Me. 341, 1842; Welsh v. State, 11 Tex. 368, 1854. But see Govitt v. State, 25 Tex. App. 419, 1888. See supra, 28 141 et seq.

8 Com. v. Soule, 2 Metc. 21, 1840; State v. Cole, 90 Ind. 112, 1883.

State v. Pike, 33 Me. 361, 1851.

« SebelumnyaLanjutkan »