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torture must be averred, and the courts must see that such means have the inevitable and natural tendency to produce the effect in which the criminal charge consists. Torture is defined to be: 1. Torments judicially inflicted; pain by which guilt is punished or confession extorted. 2. Pain, anguish, pang. Dr. Johnson. Webster defines it to be: 1. Extreme pain, anguish of body or mind; 2. Pang, agony, torment.

"The torture here alluded to must consist in some violent, wanton and cruel act, necessarily producing pain and suffering to the animal. Now it is manifest that, from tying a brush or board to the tail of a horse, different effects may follow from the circumstances accompanying the act, as will from the manner and place in which the act is done, or from the nature and qualities of the animal. A fiery, high-mettled and wild horse, may kill himself in order to escape from the troublesome and frightful appendage to his tail. A gentle, faithful old farm horse, with more hard sense than the mischievous lad who sought to frighten him, may not mind the brush or board, but may carry it to to his owner to have it taken off without suffering or fatigue.

"Suppose the tying had been in a stable, so that the animals could not have had room to run to hurt themselves, this could not have been the torture provided in our statute; therefore, the mere act of tying brush or boards to the tail of a horse, unaccompanied with averments declaring the effects of the act, could never been in the minds of the framers of the statute.

"I am satisfied, upon a full consideration of the subject, that the indictment in this case is too defective, too loose and vague to support the judgment rendered upon it. This being the opinion of the other judges, the judgment below is reversed."

§ 203. "Needlessly Kill" Means Act of Wanton Cruelty without Useful Motive and does not Refer to the Act being Unlawful or Unvoidable.— This was held in a prosecution under the Arkansas statute making it a misdemeanor to "needlessly mutilate or kill any living creature." The defendant had killed on his farm a trespassing hog. It was held that his act was not within the statute. The court said: "The court is called for the first time to construe a new statute, belonging to a class, which must ever be more or less vague in their meaning, and extremely difficult of administration. They are the outgrowth of modern sentiment, and are of comparatively recent origin. They attempt to transcend what had been thought, at common law, the practical limits of municipal government. They spring from tentative efforts of the new England colonists to enforce imperfect but well recognized moral obligations; a thing much more practical in small isolated communities than in populous government. They first had in view only to compel benevolence and mercy to these useful animals, which being domesticated, and wasting their lives in man's service, were supposed to be entitled to his kind and humane consideration. Such statutes appealed strongly to the instincts of humanity. They were adopted in many of the States, and recently in England; and the impulse which has favored them has endeavored to enlarge their beneficence, until, in our law they are made to embrace 'all living creatures.' It is obvious that laws of this class, pressed to this extreme limit, must be handled by the court with great care, and we feel it due the Legislature to do so, to prevent them from becoming dead letters. They must be rationally construed with reference to

1 Grise v. State, 37 Ark. 456 (1881).

their true spirit and intention. It must be kept in mind that they are not directed at all to the usual objects of municipal law, as laid down by Blackstone. For example: They are not made for the protection of the absolute or relative rights of persons, or the rights of men to the acquisition and enjoyment of property or the peace of society. They seem to recognize and attempt to protect some abstract rights in all that animate creation, made subject to man by the Creator, from the largest and noblest to the smallest and most insignificant. The rights of persons and the security of property and the public peace, are all protected by other laws, with appropriate sanctions. The objects of the two classes should not be confounded. It will lead to hopeless confusion. The peculiar legislation we all now called upon to discuss, must be considered wholly irrespective of property, or of the public peace, or of the inconveniences of nuisances. The misdemeanors attempted to be defined may be as well perpetrated upon a man's own property as another's, or upon creatures, the property of no one, and so far as one act is concerned, it is all the same whether the acts be done amongst refined men and women, whose sensibilities would be shocked, or in the solitude of closed rooms or secluded forests.

"It is in this view that such are to be construed, to give them, if possible, some beneficent effect, without running into such absurdities as would, in the end, make them mere dead letters,. A literal construction of them would have that effect. Society, for instance, could not long tolerate a system of laws, which might drag to the criminal bar, every lady who might impale a butterfly, or every man who might drown a litter of kittens, to answer there, and show that the act was needful. Such laws must be rationally considered, with refence to their objects, not as the means of preventing aggressions upon property, otherwise unlawful; nor so as to involve absurd consequences, which the Legislature can not be supposed to have intended. So construed, this class of laws may be found useful in elevating humanity, by enlargement of its sympathy with all God's creatures, and thus society may be improved. Although results in other States and in England, have not, as we judge, from the paucity of decisions, been such as to excite sanguine hopes, yet to a limited extent the object of these laws may be practically obtained. It is the duty of the courts to co-operate to that end, so far as the rules of construction may warrant. There are civil laws for the recovery of damages for trespass, and criminal laws for the punishment of malicious mischief, and trespass and injury to property. In a suit or indictment, under these, there are appropriate defences, not applicable to an indictment for cruelty or needless killing. They should, one or the other of them, have been resorted to by the individual, or the State, if the object had been to recover damages for the loss of the pig, or to protect society from violent aggressions on property. The law under which this indictment was framed has no such object, and cannot be made a substitute for others. The issue was, did the defendant needlessly kill the pig? The burden of proof was upon the State to show not only the killing, but that it was done under such circumstances as, unexplained, would authorize the jury to believe that it was needless in the sense of the statute. The controversy does not turn at all upon the lawfulness or unlawfulness of the act, except in so far as the statute itself might make it unlawful as needless.

"From the view we have taken of the nature and scope of this class of acts, it is obvious that the term 'needless' can not be reasonably construed as characterizing an act which might by care be avoided. It simply means an act done

torture must be averred, and the courts must see that such means have the inevitable and natural tendency to produce the effect in which the criminal charge consists. Torture is defined to be: 1. Torments judicially inflicted; pain by which guilt is punished or confession extorted. 2. Pain, anguish, pang. Dr. Johnson. Webster defines it to be: 1. Extreme pain, anguish of

body or mind; 2. Pang, agony, torment.

"The torture here alluded to must consist in some violent, wanton and cruel act, necessarily producing pain and suffering to the animal. Now it is manifest that, from tying a brush or board to the tail of a horse, different effects may follow from the circumstances accompanying the act, as will from the manner and place in which the act is done, or from the nature and qualities of the animal. A fiery, high-mettled and wild horse, may kill himself in order to escape from the troublesome and frightful appendage to his tail. A gentle, faithful old farm horse, with more hard sense than the mischievous lad who sought to frighten him, may not mind the brush or board, but may carry it to to his owner to have it taken off without suffering or fatigue.

"Suppose the tying had been in a stable, so that the animals could not have had room to run to hurt themselves, this could not have been the torture provided in our statute; therefore, the mere act of tying brush or boards to the tail of a horse, unaccompanied with averments declaring the effects of the act, could never been in the minds of the framers of the statute.

"I am satisfied, upon a full consideration of the subject, that the indictment in this case is too defective, too loose and vague to support the judgment rendered upon it. This being the opinion of the other judges, the judgment below is reversed."

$203.- "Needlessly Kill" Means Act of Wanton Cruelty without Useful Motive and does not Refer to the Act being Unlawful or Unvoidable. — This was held in a prosecution under the Arkansas statute making it a misdemeanor to "needlessly mutilate or kill any living creature." The defendant had killed on his farm a trespassing hog. It was held that his act was not within the statute. The court said: "The court is called for the first time to construe a new statute, belonging to a class, which must ever be more or less vague in their meaning, and extremely difficult of administration. They are the outgrowth of modern sentiment, and are of comparatively recent origin. They attempt to transcend what had been thought, at common law, the practical limits of municipal government. They spring from tentative efforts of the new England colonists to enforce imperfect but well recognized moral obligations; a thing much more practical in small isolated communities than in populous government. They first had in view only to compel benevolence and mercy to these useful animals, which being domesticated, and wasting their lives in man's service, were supposed to be entitled to his kind and humane consideration. Such statutes appealed strongly to the instincts of humanity. They were adopted in many of the States, and recently in England; and the impulse which has favored them has endeavored to enlarge their beneficence, until, in our law they are made to embrace 'all living creatures.' It is obvious that laws of this class, pressed to this extreme limit, must be handled by the court with great care, and we feel it due the Legislature to do so, to prevent them from becoming dead letters. They must be rationally construed with reference to

1 Grise v. State, 37 Ark. 456 (1881).

their true spirit and intention. It must be kept in mind that they are not directed at all to the usual objects of municipal law, as laid down by Blackstone. For example: They are not made for the protection of the absolute or relative rights of persons, or the rights of men to the acquisition and enjoyment of property or the peace of society. They seem to recognize and attempt to protect some abstract rights in all that animate creation, made subject to man by the Creator, from the largest and noblest to the smallest and most insignificant. The rights of persons and the security of property and the public peace, are all protected by other laws, with appropriate sanctions. The objects of the two classes should not be confounded. It will lead to hopeless confusion. The peculiar legislation we all now called upon to discuss, must be considered wholly irrespective of property, or of the public peace, or of the inconveniences of nuisances. The misdemeanors attempted to be defined may be as well perpetrated upon a man's own property as another's, or upon creatures, the property of no one, and so far as one act is concerned, it is all the same whether the acts be done amongst refined men and women, whose sensibilities would be shocked, or in the solitude of closed rooms or secluded forests.

"It is in this view that such are to be construed, to give them, if possible, some beneficent effect, without running into such absurdities as would, in the end, make them mère dead letters,. A literal construction of them would have that effect. Society, for instance, could not long tolerate a system of laws, which might drag to the criminal bar, every lady who might impale a butterfly, or every man who might drown a litter of kittens, to answer there, and show that the act was needful. Such laws must be rationally considered, with refence to their objects, not as the means of preventing aggressions upon property, otherwise unlawful; nor so as to involve absurd consequences, which the Legislature can not be supposed to have intended. So construed, this class of laws may be found useful in elevating humanity, by enlargement of its sympathy with all God's creatures, and thus society may be improved. Although results in other States and in England, have not, as we judge, from the paucity of decisions, been such as to excite sanguine hopes, yet to a limited extent the object of these laws may be practically obtained. It is the duty of the courts to co-operate to that end, so far as the rules of construction may warrant. There are civil laws for the recovery of damages for trespass, and criminal laws for the punishment of malicious mischief, and trespass and injury to property. In a suit or indictment, under these, there are appropriate defences, not applicable to an indictment for cruelty or needless killing. They should, one or the other of them, have been resorted to by the individual, or the State, if the object had been to recover damages for the loss of the pig, or to protect society from violent aggressions on property. The law under which this indictment was framed has no such object, and cannot be made a substitute for others. The issue was, did the defendant needlessly kill the pig? The burden of proof was upon the State to show not only the killing, but that it was done under such circumstances as, unexplained, would authorize the jury to believe that it was needless in the sense of the statute. The controversy does not turn at all upon the lawfulness or unlawfulness of the act, except in so far as the statute itself might make it unlawful as needless.

"From the view we have taken of the nature and scope of this class of acts, it is obvious that the term 'needless' can not be reasonably construed as characterizing an act which might by care be avoided. It simply means an act done

without any useful motive, in a spirit of wanton cruelty, or for the mere pleasure of destruction. Other portions of the act are directed to prevent undue torture, or suffering, which do not come here in question. However unlawful the act may be, and whatever penalties might be incurred under the statutes, the defendant should not, under this indictment, have been convicted, if he had some useful object in the killing, such as the protection of his wheat and corn.

"The provisions of different statutes must be regarded; and acts really criminal, must be punished under appropriate indictments. Malicious mischief and needless killing are distinct.

"The defendant, in effect, asked the court to instruct:

"First. That the burden was on the State to show not only the killing but that it was needless, and that "needless" meant a killing in mere idle wantonness, without being in any sense whatever beneficial or useful to defendant.

"Second. That it was for the jury to determine whether or not it was 'needless' and that they might consider the facts, that the pig was found in the field where there was corn and wheat, that it had frequently been there before, and all other facts and circumstances in evidence.

"Third. That the jury must find before conviction that there was no necessity or cause whatever, for the defendant to kill the animal.

"Fourth. That considering the circumstances, if the jury found that the animal was trespassing upon the defendant's crops and destroying them, and that he had up to the time of killing used all reasonable means to prevent it, and that the act of killing did prevent it, they would be warranted in finding that it was not needless.

"Fifth. That the word 'needlessly' used in the statute, relates to a wanton and cruel act, and not to one which is the result of necessity, or reasonable

cause.

"Sixth. That unless the defendant was guilty of wanton and needless acts of cruelty to the animal, resulting in unjustifiable physical pain, they should acquit.

"We think that the spirit of all the foregoing instructions, except the last, was in harmony with the true intent and meaning of the act as nearly so as moral acts can be characterized by the formulas of language - at all times a difficult task. They are very nearly in accord with the views we take of the statute. The last was erroneous. A needless killing could not be justified by an easy death Cruelty was no part of the charge, although it is made criminal under the other sections.

"The instructions given by the court, of its own motion, were as follows: "First. That the proof of killing a pig would support the allegation of the killing of a hog.

"This is unquestionably correct.

* *

"Second. 'If the jury believe from the evidence that defendant, in this county,' etc., * 'needlessly killed the animal mentioned in the indictment they should convict, notwithstanding it may have been trespassing within defendant's inclosure at the time it was killed. "Needlessly" means without necessity, or unnecessarily, as when one kills a domesticated animal of another either in mere wantonness, or to satisfy a depraved disposition, or for sport or pastime, or to gratify one's anger, or for any other unlawful purpose.'

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