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

I. BY STATUTE.

§ 1065. IN prior editions, the statutes in force in a series of

given on this topic. They are now omitted for purposes of condensation; but the adjudications upon them are here

Statutes based on common law.

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

§ 1066. Malicious mischief in this country, as a common law

Offence of wider scope in

this country than in England.

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 to George III., repealed or otherwise, were enacted for the special purpose of providing against malicious mischief; and as the statutory penalty was both more specific and more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.

Offence in

licious physical injury to

the rights

of another person or

to those

of the public.

§ 1067. In its general application malicious mischief may be defined to be any malicious or mischievous physical injury, either to the rights of another or to those of the public in cludes mageneral. Thus, it has been considered an offence at common law to maliciously destroy a horse belonging to another; or a cow; or a steer; or any beast whatever which may be the property of another; to wantonly kill an animal where the effect is to disturb and molest a family; to be guilty of wanton cruelty to animals, either publicly (when the animal belongs to the defendant himself), or secretly, through specific malice against another person who is the owner, in such case mere wantonness not being sufficient; to maliciously cast the carcass of an animal into a well in daily use; to maliciously poison chickens, fraudulently tear up a promissory note, or break windows; to mischieviously set fire to a number of barrels of tar belonging to another;10 to maliciously girdle or injure trees or plants kept either for use or ornament; to put cow-itch on a towel, with intent to injure a person about to use it ;12 to maliciously break up a boat;13 to maliciously cut off the hair of the tail or mane of a horse, with intent to annoy or distress the owner;1 to discharge a gun with

State v. Scott, 2 Dev. & Bat. 35, 1836; contra, State v. Wheeler, 3 Vt. 344, 1831.

But see a learned article in 7 Law Rep. (N. S.) 87-93. As to dogs, see infra, 1076; supra, & 872. Cf. Mr. Gerry's argument in Davis v. Society for Prevention of Cruelty, etc., 75 N.

Y. 362, 1878.

1852.

Henderson's Case, 8 Gratt. 708,

U.S. v.

Logan, 2 Cranch C. C. 259,

Resp. v. Teischer, 1 Dall. 359, 1788. 10 State v. Simpson, 2 Hawks, 460, 1823.

11 Com. v. Eckert, 2 Browne, 249,

1812; per contra, Brown's Case, 3 Greenl. 177, 1824; and State v. Helmes, 5 Ired. 364, 1845, where it was held not to be indictable to maliciously cut down a crop of Indian corn standing in a field. But see People v. O'Brien, 60

1821; State v. Briggs, 1 Aikens, 226, Mich. 8, 1886. See infra, & 1082 c. 1825. See Statutes, infra, ¿ 1082 d. But

12

People v. Blake, 1 Wheel. C. C.

it has been held that "wounding" a 490, 1823.

horse or other animal belonging to 13 Loomis v. Edgerton, 19 Wend. another is not indictable at common 419, 1839.

law. Ranger's case, 2 East P. C.

1074

14 Boyd v. State, 2 Humph. 39, 1840. State v. Beekman, 3 Dutch. This, however, was under a statute pro124, 1858; State v. Manual, 72 N. C. hibiting “disfiguring." Infra, & 1082 d.

the intention of annoying and injuring a sick person in the immediate vicinity; to maliciously and indecently break into a room with violence for the same purpose; though it is held not an indictable offence to remove a stone from the boundary line between the premises of A. and B. with intent to injure B.3

But offence must be

with

owner, or involve a breach of

the peace.

§ 1068. The recent inclination, however, so far as the common law is concerned, is to restrict the party injured to his civil remedies, except (1) where the offence is committed malice to secretly, in the night-time, or in such other way as to inflict peculiarly wanton injury, so as to imply malice to the owner; or (2) where it is accompanied with a breach of the peace. Thus, in New York, an indictment charging that the defendant, "with force and arms, unlawfully, wilfully, and maliciously, did break in pieces and destroy two windows in the dwelling-house of M. C. to the great damage of the said M. C., and against the peace," etc., was held not to set forth an offence indictable by the laws of the State; it being held that an act which would otherwise be only a trespass does not become indictable by being charged to have been done with force and arms, or by being alleged to have been committed maliciously, or without claim of right, or without any motive of gain. Whether if the breaking of the windows in this case had been charged to have been done secretly, or in the night-time, the act would have been indictable was doubted by Beardsley, C. J., it being said generally that the cases in which indictments have been sustained for maliciously killing or wounding domestic animals depend upon features peculiar to such offences, as the depravity of mind, and the cruelty of disposition, which such acts evince.5 Maiming or wounding an animal, also, without killing it, was held in New Jersey, in 1858, to be not indict

1 Com. v. Wing, 9 Pick. 1, 1829. Supra, 167.

See People v. Moody, 5 Parker C. R. 568, 1864, where an indictment for

2 Com. v. Taylor, 5, Binn. 277, 1812. wantonly and clandestinely injuring. See infra, 1093.

harness in the daytime was held good at common law. And see State v. Newby, 64 N. C. 23, 1870; Northcot v. State, 43 Ala. 330, 1869. Under the English statutes, see R. v. Martin, L. R. 8 Q. B. D. 54.

3 State v. Burroughs, 2 Hals. 426, 1802. Maliciously tearing down, injuring, and breaking telephone wires are indictable as malicious mischief at common law. State v. Watts, 48 Ark. 56, 1886. So with wilfully and ma- 5 Kilpatrick v. People, 5 Denio, 277, liciously tearing down a constable's 1848. See this case commented on in notice of sale. Com. v. Johnson, 3 5 Parker C. R. 568, 1864.

Pa. Dist. Rep. 222, 1893. See, also,

Folwell v. State, 49 N. J. L. 31, 1886.

able either at common law or under the statute law of that State.1 And it is held in other States that at common law an injury to personal property, to be indictable, must be marked by special malice to the owner, or accompanied by or provocative of a breach of the peace.2

§ 1069. It has been shown3 that whenever goods are fraudulently taken against the owner's will animo furandi, the offence is larceny; while when they are simply maliciously in- Distin guishable jured, without being taken animo furandi, it is malicious from mischief. It must also be noticed that there are articles of property not objects of larceny (e. g., real estate, dogs, etc.), for maliciously injuring which a person may be indicted.

larceny by absence of intent to

steal.

§ 1070. Neither negligent injury, nor an injury inflicted angrily in hot blood, is sufficient to constitute the offence.5 There must be

1 State v. Beekman, 3 Dutch. (N. J.) 124, 1858. See, also, to same effect, R. v. Ranger, 2 East P. C. 1074; State v. Allen, 72 N. C. 114, 1875.

2

State v. Phipps, 10 Ired. 17, 1849; Dawson v. State, 52 Ind. 478, 1876; Illies v. Knight, 3 Tex. 312, 1848; State v. Enslow, 10 Iowa, 115, 1860; State v. Williamson, 68 Iowa, 351, 1886. Under the latter head fall cruel games, such as cock-fighting. Infra, 1465 a. 3 But see, as to some extent conflicting with views of the text, State v. Leavitt, 32 Me. 183, 1851.

'See infra, ?? 1076, 1082 d.

'Com. v. Walden, 3 Cush. 558, 1849; State v. Robinson, 3 Dev. & Bat. 130, 1838; Wagstaff v. Schippel, 27 Kans. 450, 1882. See Davis v. Society for Prevention of Cruelty, etc., 75 N. Y. 362, 1879; 21 Alb. L. J. 265.

In R. v. Pembliton, 12 Cox C. C. 607; L. R. 2 C. C. R. 119, the defendant was indicted for unlawfully and maliciously committing damage upon a window in the house of the prosecutor, contrary to the 23 & 24 Vict. c. 97, s. 51. It appeared that the de

fendant, who had been fighting with other persons in the street, after being turned out of a public house, went across the street, and picked up a stone, and threw at them. The stone missed them, passed over their heads, and broke a window in a public house. The jury found that he intended to hit one or more of the persons he had been fighting with, and did not intend to break the window. It was held by all the judges, that upon this finding the prisoner was not guilty of the charge within the above statute. It was held, also, that to support a conviction under sec. 51, there must be a wilful and intentional doing of an unlawful act in relation to the property damaged. See supra, ? 120.

In Com. v. Williams, 110 Mass. 401, 1872, it was held that for a conviction under the statute of 1862, c. 160, which provides for the punishment of any one who "wilfully or maliciously injures" a building, it is not enough that the injury was wilful and intentional, but it must have been done out of cruelty, hostility, or revenge.