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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.2

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 limiting

Statutes exist both in England and in this country requiring common carriers to take due care of animals under their charge for transportation. Federal statutes to this effect have been held constitutional.5

common carriers.

Wanton

sential to offence.

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 discipline, however ill-judged; and so when the object was bona fide, to improve the appearance of the animal.8 Drunkenness, when the mind is incapable of intent, is a defence, but not otherwise.' But when the object is simply to use the animal

1 R. v. Owens, 1 Mood. C. C. 205. 2 R. v. Welch, L. R. 1 Q. B. D. 23; 13 Cox C. C. 121. Shaving a horse's tail is "disfiguring," within the statute. Boyd v. State, 2 Humph. 39, 1840.

quiring carriers to provide food and water to cattle, see Johnson v. Colam, L. R. 10 Q. B. 544; Swan v. Saunders, 14 Cox C. C. 560.

6 Duncan v. State, 49 Miss. 331, 1873; Thompson v. State, 51 Ibid. 353, 1875. That under these particular statutes malice to the owner need not be shown, see R. v. Tivey, 1 C. & K. 704; 1 Den. C. C. 63; Brown v. State, 26 Ohio St. 176, 1875. Supra, 1070.

3 Powell v. Knight, 38 L. T. (N. S.) 607, 1878. It is otherwise when the owner sends out a wounded or diseased horse to graze, thereby causing it intense pain, which is held to be "torturing" under the statute. Everitt v. Davies, 38 L. T. (N. S.) 360, 1878 It Supra, 22 106 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.

See R. v. Bullock, L. R. 1 C. C. 115; 11 Cox C. C. 125. The indictment need not state the means and instruments made use of. State v. Falkenham, 73 Md. 463, 1891.

7

R. v. Mogg, 4 C. & P. 364. A customary operation performed with reasonable care upon an animal to increase its value is not cruelty within the statute, though painful and in fact 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.

9 State v. Avery, 44 N. H. 392, 1862,

For proceedings under statute re- citing R. v. Thomas, 7 C. & P. 817.

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

"Disci

necessity as

a 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. g., trapping or taming wild creatures, catching of fish pline" or by hooks laid at night), or to preclude its depredations or 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.3 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.*

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Supra, 95 et seq.; Janson v. Brown, 1 Camp. 41; Protheroe v. Mathews, 5 C. & P. 581; Stephens v. State, 65 Miss. 329, 1888. See argument of Hoar, J., in Com. v. Lufkin, 7 Allen, 579, 1863; and see Com. v. Wood, 111 Mass. 408, 1873; Walker v. Court of Special Sessions, 4 Hun, 441, 1875.

3

In Pitts v. Millar, L. R. 9 Q. B. 380; 30 L. T. (N. S.), 328 Cockburn, C. J., went so far as to hold that putting rabbits into an inclosed field and then 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 Cranch C. C. 391, 1839.

That cock-fighting is cruelty to the animal, apart from the question of public scandal, and of gambling, see Budge v. Parsons, 3 B. & S. 382. But see Morley v. Greenhalgh, 3 B. & S. 374; Clarke v. Hague, 8 Cox C. C. 324; 2 E. & E. 281; and see infra, ? 1465 a.

Reedy v. State, 22 Tex. App. 271, 1886; Farmer v. State, 21 Tex. App. 423, 1886; McMahan v. State, 29 Tex. App. 348, 1891. In Benson v. State, 1 Tex. App. 6, 1876, the court said: "It may be done under such circumstances as negative a wanton act-as where a man has a good fence, and a horse or cow is in the habit of trespassing upon his crop, and he kills it during an act of trespass on his crop, not from wantonness, but to prevent the destruction of his crop, he would not be criminally liable." See Branch

Letting loose a fox for the purpose of being hunted by dogs that tear it to pieces is punishable under the Massachusetts statute. Com. v. Turner, (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.

996

[BOOK II. 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." When the statute prohibits "cruelly beating," it is enough to aver that the defendant did "cruelly beat," etc.7 This, however, may be doubted when the pleader could readily have individuated the offence.8 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;12 nor to aver the poisoning of eight horses, when the poison was distributed in the feed placed before the whole eight."

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was a substance that would kill. People v. Keeley, 81 Cal. 210, 1889. As to spring guns, see supra, ? 464.

1 State v. Avery, 44 N. H. 392, 1862; Com. v. McClellan, 101 Mass. 34, 1869; Com. v. Whitman, 118 Ibid. 458, 1875; State v. Brocker, 32 Tex. 611, 1870; Darnell v. State, 6 Tex. App. 482, 1879.

2 Smith v. State, 43 Tex. 433, 1875; Collier v. State, 4 Tex. App. 12, 1878. 8 See, however, R. v. Chalkley, R. & R. C. C. 258.

4 Whart. Crim. Ev. 146.

5 See State v. Pugh, 15 Mo. 509, 1852.

13

Com. v. McClellan, 101 Mass. 34, 1869.

8 See Whart. Cr. Pl. & Pr. & 221. State v. Comfort, 22 Minn. 271,

1875.

10 Thompson's Case, 51 Miss. 353, 1875. See State v. Rector, 34 Tex. 565, 1871.

11 Rembert v. State, 56 Miss. 280, 1879.

12 People v. Tinsdale, 10 Abb. Pr. (N. S.) 374, 1868; State v. Comfort, 22 Minn. 271, 1875; Whart. Cr. Pl. & Pr. 254.

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

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.

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.

His

Defendant was indicted for tearing down a sheriff's advertisement. 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.

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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.

I. CHARACTER OF OFFence.

Forcible exclusion of another from his lands and tenements is an offence at common law, ? 1083.

Modification of common law by

statutes, 1084.

Gist of offence is the violence, ? 1085.

Statutory offence requires less force than common law, but either freehold or leasehold title, ? 1086.

Any person forcibly putting another out of possession is indictable, 1087.

Wife may be so indicted against her husband, 1088.

So as to tenant in common ejecting his companion, 1089. So as to third person dispossess

ing officer of law, 1090. Real estate, corporeal or incorporeal, may be thus protected, ? 1091.

To forcible trespass on personalty

force is essential, ? 1092. And so to forcible entry, 1093. Force may be inferred from facts, ? 1094.

Rule does not apply to outhouses, 1095.

Entry by trick is not forcible, ? 1096.

Peaceable entry may be followed

by forcible detainer, & 1097. Forcible continuance may be forcible entry, 1098.

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Indictment must contain technical terms, 1107.

For common law offence, possession only need be averred, 1108.

Possession must be described as in ejectment, 1109.

Entry and detainer are divisible, ? 1110.

Title is necessary to restitution, ? 1111.

Indictment for forcible trespass

must aver violence, 1112. Practice to sustain summary convictions, 1113.

POINTS FOR DEFENCE IMPROPERLY
REFUSED,
AND ERRONEOUS
CHARGES. (See end of chapter.)

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