LIQUOR LAWS- Continued. A club of men bona fide buy and own in common a stock of liquors, which is delivered by their steward only to actual members upon receipt of checks previously obtained from him at five cents each. Held, that the steward is not indictable for unlawfully keeping liquors with intent to sell. Com. v. Pomfret, p. 650. A druggist selling liquor to a minor on a physician's prescription in good faith that it is to be used for medicinal purposes, is guilty of no offense. State v. Wray, pp. 655, 762, 763. A brewer who gives beer to a person who comes to see him at his house on business, is not liable under a statute as follows: "Whoever, by himself or his agent or servant, shall sell or give any intoxicating liquor to any person intoxicated shall for each offense be fined," etc., even though such person is under the influence of liquor. Albrecht v. State, p. 657. * * * * * Under a statute subjecting to fine and imprisonment, the selling or tippling of intoxicating liquors in certain cases, the buyer of the liquor is not guilty of the offense. Harney v State, 659. Whether ale or cider is an intoxicating liquor is a question of fact and not of law. State v. Biddle, pp. 662, 765. The thirty-second Victoria, ch. 22, sec. 6, O., enables the police commissioners to pass by-laws for "regulating " licensed taverns. A by-law under this authority provided that the bar-room should be closed and unoccupied, except by members of the keeper's family, or his employes, and should have no light except the natural light of day, during the time prohibited by the by-law for the sale of liquors, i.e., from twelve at night to five a. m. Held, that the by-law was unauthorized, and a conviction under it was quashed. R. v. Belmont, p. 667. Under a statute forbidding liquor selling on Sundays or legal holidays, or election days, the defendant was charged with selling liquor "on or about the fourth day of July, A. D. 1876." Held, that the statute, concerning holidays, made the Fourth of July a holiday for purposes of presenting commercial paper for payment, or protesting it, etc., but not a legal holiday in the sense of the statute, and that if the Fourth of July had been a legal holiday, time was of the essence of the offense, and the averment in the indictment was insufficient. Ruge v. State, p. 670. Sale to minor as parent's agent not indictable, p. 764. "Selling or giving away liquor to intemperate persons," p. 764. Knowledge and reputation of person's habits, p. 764. Liquors must be sold in locality prohibited, p. 764. Keeping saloon open on election day, p. 765. Selling liquors near school, p. 765. Meaning of "business" and "occupation," p. 765. "LIVING IN ADULTERY." Construed, p. 95. LOTTERY. See, also, GAMING; POST-OFFICE LAWS. Construed, pp. 759, 639. MAIM. Construed, p. 601. "MAIMING OR WOUNDING CATTLE." Construed, p. 601. "MALICIOUS INJURY." Construed, p. 601. MALICIOUS MISCHIEF. Evidence that property was injured or destroyed through mere wantonness, or in sport, and not from a feeling of resentment towards its owner or possessor, is not sufficient to convict the defendant upon an indictment charging this offense. State v. Robinson, p. 465. The statutory offense in Taxas is the willful or the wanton commission of the act imputed, and this essential constituent of the offense is not deducible from the mere commission of the act. The burden is on the State to prove such other facts or circumstances as suffice to satisfy the jury, beyond a reasonable doubt, that the inculpatory act was either willfully or wantonly done by the defendant; and an instruction to this effect must be given to the jury. Thomas v. State, p. 467. Willful when used in a penal statute, means more than its import in common parlance. It means with evil intent or legal malice, or without reasonable ground to believe the act to be lawiul. A wanton act is one committed in disregard of the rights of another, in a reckless spirit, or under circumstances which evince a lawless, wicked or mischievous intent. Id. The owner of ewes upon a range were attacked by a number of strange rams at a time when it was dangerous to get them with lambs. To drive them away being impossible, and their owners being unknown, he consulted his neighbors and was advised by them to kill the rams, and soon afterwards their carcasses were found near his camp. Held, that the jury should have been instructed that the killing of the rams was not willful or wanton within the meaning of the law, if done in the necessary protection of property of the slayer, after he had ineffectually used ordinary care to protect his property. Id. or When used in a penal statute, the word "willful" means more than it does in common parlance. It means with "evil intent,” or “legal malice," "without reasonable ground for believing the act to be lawful.” In common parlance it is used in the sense of intentional, as distinguished from an accidental or inyoluntary act. In order, then, to have made the killing of an animal willful, it must have been committed with evil intent, with legal malice, and without legal justification. See the MALICIOUS MISCHIEF - Continued. statement of this case for evidence held insufficient to disclose an evil intent on the part of the defendant. Lane v. State, p. 470. In a trial for malicious mischief alleged to have been committed by pulling down a fence, the trial court charged the jury that "the title to the land is not a question for your consideration, only so far as to show to whom belongs the rightful possession of the fence." Held, error, because inapplicable to any possible state of facts, and having been excepted to, notwithstanding the record brings up no statement of facts, this court has no alternative but to reverse the judgment of conviction. Behrens v. State, p. 475. In a trial for malicious mischief by pulling down a fence, the inquiry in regard to possession should be confined to the actual, quiet and peaceable possession, and not to extend to the rightful possession of the fence. Id. It was proved that the horse was a bad fence-breaker, and there was evidence that it was shot to prevent the destruction of D.'s crop. Held, that in the absence of proof that D.'s crop was not properly protected against live stock, D. could not be convicted. Davis v. State, p. 476. For a conviction under the statute which provides for the punishment of any one "who willfully or maliciously injures " a building, it is not enough that the injury was willful and intentional, but it must have been done out of cruelty, hostility, or revenge. Com. v. Williams, p. 479. To constitute malicious mischief under the statute, the killing or other act when inflicted on the dumb animal, must not only be willfully, but wantonly done, without excuse, and under circumstances evincing a lawless spirit. Branch v. State, p. 481. The killing of an animal which was in the habit of trespassing on one's crop during an act of trespass, not from wantonness, but to prevent destruction of crops, is not malicious mischief. Id. and see p. 600. In a prosecution for malicious mischief, a tenant in possession of leased premises is the owner thereof. Therefore an indictment for pulling down a fence thereon which alleges the property in the lessor is not sustained by proof that it was under the control and management of the lessee. Brumley v. State, p. 484. The non-consent of the owner must be shown in such cases. Id. Elements of offense at common law, p. 594. Wounding animals not indictable at common law, p. 595. "Animals; " statutory construction, p. 599. Malice must be towards owner, p. 600. Killing must be wanton and malicious, p. 600. "Maliciously" means wantonly, p. 600. "Maim," permanent injury necessary, p. 601 "Malicious injury;" dog in pursuit of game, p. 601. Causing horses to go on land of another without his consent, p. 601. A girl of sixteen years of age is not an infant of tender years unable to take care of herself, and therefore her master and mistress are not guilty of any crime in not supplying her with sufficient food and nourishment while in their service. R. v. State, p. 68. Must be duty of person to supply food, p. 104. MILL DAM. Is not a nuisance, p. 774. MISCEGENATION. Cohabitation without a previous marriage between a negro and a white woman is not miscegenation within the Texas statute. Moore v. State, p. 61. A marriage between a white man and a woman who is of less than onefourth negro blood, however small this lesser quantity may be, is legal. McPherson v. Com., p. 62. A woman whose father was white, and whose great-grandmother was of brown complexion, is not a negro in the sense of the statute. Id. A marrriage solemnized in a State whose laws permit such marriage, between a negro and a white person domiciled in such State, is valid în this State. State v. Ross, p. 64. The domicil of the husband becomes also that of the wife upon marriage. Id. In an indictment for fornication and adultery where the female defendant (a white woman), left this State for the purpose of evading its laws and consummating a marriage with her co-defendant (a negro), but with no intent to return, and afterwards both of them came to this State to reside, held, that the defendants were not guilty. Id. Defined and illustrated, p. 104. "MISFEASANCE IN OFFICE." Intoxication of officer not, p. 419. MONEY. It is not within the United States statute prohibiting the issue by private persons of obligations for a less sum than one dollar to be used as money, to issue and circulate such obligations payable on their face in goods. U. S. v. Van Auken, p. 170. "MONEY OR PROPERTY OF ANOTHER." Construed, p. 903. "NAKED GIRLS." Construed, p. 794. NATIONAL BANK. See EMBEZZLEMENT. "NEEDLESSLY KILL." Construed, pp. 494, 604. NEGLECT. See PARENT AND CHILD; MASTER AND Servant. NEUTRALITY LAWS. What not within statute, p. 254. "NIGHT." Construed, p. 883. NOXIOUS SMELLS. See NUISANCES. "NOXIOUS THING." Construed, p. 93. NUISANCES. See GAMING; LIQUOR LAWS; OBSTRUCTING ROADS; SABBATH BREAKING; It is not a public nuisance to keep barrels of gunpowder near a public street or dwelling-houses, unless the keeping is negligent. People v. Sands, p. 703. It is not an indictable nuisance for city authorities to burn infected bedding and clothing to prevent the spread of small-pox, using proper means and precautions for the safety of others, although such burning causes inconvenience to a few persons by noxious smoke and vapors. State v. Mayor, p. 710. Nuisance must do public injury, p. 780. Whole community must be affected, p. 781. Noxious smells; when not nuisance, p. 781. Must be proximate cause, p. 782. Sending unwholesome provisions to market, p. 795. |