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TREATISE

CRIMINAL LAW.

BY

FRANCIS WHARTON, LL.D.,

LATE MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW; * ACTHOR OF TREATISES ON “ EVIDENCE,” “CONFLICT OF LAWS," “NEGLIGENCE," " AGENCY,”

AND "MEDICAL JURISPRUDENCE."

IN TWO VOLUMES.

VOLUME II.

TENTA EDITION, REVISED WITH LARGE ADDITIONS

BY

WM. DRAPER LEWIS, Ph.D.

PHILADELPHIA :
KAY & BROTHER,
LAW PUBLISHERS, BOOKSELLERS, AND IMPORTERS.

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Entered according to Act of Congress, in the year 1846, by

JAMES KAY, JR., AND BROTHER, in the Office of the Clerk of the District Court of the United States, in and for the

Eastern District of Pennsylvania.

Entered according to Act of Congress, in the year 1852, by

JAMES KAY, JR., AND BROTHER, in the Office of the Clerk of the District Court of the United States, in and for the

Eastern District of Pennsylvania.

Entered according to Act of Congress, in the year 1855, by

KAY AND BROTHER, in the Office of the Clerk of the District Court of the United States, in and for the

Eastern District of Pennsylvania.

Entered according to Act of Congress, in the year 1857, by

KAY AND BROTHER, in the Office of the Clerk of the District Court of the United States, in and for the

Eastern District of Pennsylvania.

Entered according to Act of Congress, in the year 1861, by

KAY AND BROTHER, in the Office of the Clerk of the District Court of the United States, in and for the

Eastern District of Pennsylvania.

Entered according to Act of Congress, in the year 1868, by

KAY AND BROTHER, in the Office of the Clerk of the District Court of the United States, in and for the

Eastern District of Pennsylvania,

Entered according to Act of Congress, in the year 1874, by

KAY AND BROTHER,
in the Office of the Librarian of Congress, at Washington.

Entered according to Act of Congress, in the year 1880, by

FRANCIS WHARTON,
in the Office of the Librarian of Congress, at Washington.

Entered according to Act of Congress, in the year 1885, by

FRANCIS WHARTON,
in the Office of the Librarian of Congress, at Washington.

Entered according to Act of Congress, in the year 1896, by the

ESTATE OF FRANCIS Wharton,
in the Office of the Librarian of Congress, at Washington.

DORNAN, PRINTER.

BOOK II.

CRIMES.

PART II.-OFFENCES AGAINST PROPERTY.

(CONTINUED.)

CHAPTER XVI.

MALICIOUS MISCHIEF. Statutes in this relation are based on | All kinds of property are subjects of common law, & 1065.

I offence, & 1076. Offence at common law is of wider Owner's title is immaterial, & 1077.

scope in this country than in Eng- Indictment must contain proper techland, & 1066.

| nical averments, 1078. Offence includes malicious physical Malice must usually be averred, 8 1079.

injury to another person or to the Mode of injury must be averred, & 1080. public, & 1067.

Statutory offence of endangering lives But offence must be with malice to of railroad travellers, & 1081.

owner, or involve a breach of the Statutory offence of obstructing railpeace, % 1068.

road carriages, & 1082. Offence is distinguishable from larceny Statutory offence of malicious injury

by absence of intent to steal, % 1069. to manufactures and machinery, Malice is essential, & 1070.

1082 a. Malice is to be inferred from facts, Statutory offence of injuring mines, % 1071.

1 & 1082 b. May be negatived by proof of other Statutory offence of injuring trees and motives, 2 1072.

shrubs, 1082 c. Honest belief in title a defence, Statutory offence of cruelty to animals, 1072 a.

1 & 1082 d. Consent of owner is a defence, % 1073. POINTS FOR DEFENCE IMPROPERLY Injury must be such as to impair REFUSED, AND ERRONEOUS utility, & 1074.

CHARGES. (See end of chapter.) Owner is competent witness, % 1075.

I. BY STATUTE. $ 1065. In prior editions, the statutes in force in a series of States were given on this topic. They are now omitted for purposes of condensation ; but the adjudications upon them are here

Statutes based on

law.

land.

after noticed, as throwing light upon the exposition of the offence

as it exists at common law. It is proper to add, also,

that for two reasons the points about to be stated bear common closely upon the offence as determined by statute. In the

first place, most of the statutes are but a codification of the common law. In the second place, many of these statutes define the offence as the “malicious injury of the property of another ;"' leaving it to the common law to define what these general terms comprise. § 1066. Malicious mischief in this country, as a common law

offence, has received a far more extended interpretation Offence of wider

than has been attached to it in England. In the latter scope in country, each object of investment, as it arose into notice, try than became the subject of legislative protection; and as far in Eng

back as the reports go there has scarcely been a single

article of property, which was likely to prove the subject of mischievous injury, which was not sheltered from such assaults by severe penalties. Thus, for instance, a series of statutes, upward of twelve in number, beginning with 37 Hen. VIII. c. 6, and ending with the Black Act, were provided for the single purpose of preventing wanton mischief to cattle and other tame beasts; and so minute was the particularity of the law-makers that a distinct and several penalty was assigned to the cutting out of the tongue of a tame beast. Upward of eighteen hundred sections, it is estimated, of acts, running from Henry VIII. to George III., repealed or otherwise, were enacted for the special purpose of providing against malicious mischief; and as the statutory penalty was both more specific and more certain than that of the common law, the books, in this class of offences, give but few examples of common law indictments. But as the later English statutes are not in force in this country, malicious mischief, as a common law offence, has here been the subject of frequent adjudications.3

For special statutes, see infra, under this head, see Wharton's Prec. & 1081. In New York, by 2 654 of 470 et seq. Penal Code of 1882, “A person who ? Stat. 37 Hen. VIII. c. 6. See unlawfully and wilfully destroys or supra, % 16. injures any real or personal property Loomis v. Edgerton, 19 Wend. 419, of another, in a case where the punish- 1838. The offence of malicious misment thereof is not specially pre- chief exists under the common law of scribed by statute,” is to be punished, the United States. State v. Watts, etc.

48 Ark. 56, 1886. For several forms of indictments

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