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TREATISE

ON

CRIMINAL LAW.

BY

FRANCIS WHARTON, LL.D.,

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LATE MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW;
AUTHOR OF TREATISES ON
"CONFLICT OF LAWS," 66
EVIDENCE,"
AND "MEDICAL JURISPRUDENCE."

NEGLIGENCE," " AGENCY,"

IN TWO VOLUMES.

VOLUME II.

TENTH EDITION, REVISED WITH LARGE ADDITIONS

BY

WM. DRAPER LEWIS, PH.D.

PHILADELPHIA:

KAY & BROTHER,

LAW PUBLISHERS, BOOKSELLERS, AND IMPORTERS.

1896.

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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.

Offence at common law is of wider
scope in this country than in Eng-
land, & 1066.
Offence includes malicious physical
injury to another person or to the
public, 1067.

offence, 1076.

Owner's title is immaterial,

1077.

Indictment must contain proper tech-
nical averments, % 1078.
Malice must usually be averred, § 1079.
Mode of injury must be averred, ? 1080.
Statutory offence of endangering lives
of railroad travellers, 1081.
Statutory offence of obstructing rail-
road carriages, ¿ 1082.

Statutory offence of malicious injury
to manufactures and machinery,
? 1082 a.

But offence must be with malice to owner, or involve a breach of the peace, 1068. Offence is distinguishable from larceny by absence of intent to steal, ? 1069. Malice is essential, ? 1070. Malice is to be inferred from facts, Statutory offence of injuring mines, ? 1071. May be negatived by proof of other Statutory offence of injuring trees and motives, 1072. shrubs, 1082 c. Honest belief in title a defence, Statutory offence of cruelty to animals, ¿ 1072 a. Consent of owner is a defence, 1073.

Injury must be such as to impair

utility, 1074.

Owner is competent witness, ? 1075.

? 1082 b.

? 1082 d.

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

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

VOL. II.-1

1

Statutes based on

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 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.1

common law.

Offence of

wider

scope

in

this country than in England.

§ 1066. Malicious mischief in this country, as a common law offence, has received a far more extended interpretation than has been attached to it in England. In the latter country, each object of investment, as it arose into notice, became the subject of legislative protection; and as far 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

2 Stat. 37 Hen. VIII. c. 6. See supra, 16.

1 For special statutes, see infra, under this head, see Wharton's Prec. 1081. In New York, by 654 of 470 et seq. Penal Code of 1882, "A person who unlawfully and wilfully destroys or injures any real or personal property of another, in a case where the punishment thereof is not specially prescribed by statute," is to be punished,

etc.

For several forms of indictments

3 Loomis v. Edgerton, 19 Wend. 419, 1838. The offence of malicious mischief exists under the common law of the United States. State v. Watts, 48 Ark. 56, 1886.

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