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to those

$ 1067. In its general application malicious mischief may be defined to be any malicious or mischievous physical injury,

Offence ineither to the rights of another or to those of the public in

cludes mageneral. Thus, it has been considered an offence at com

physical mon law to maliciously destroy a horse belonging to an injury to other ;' or a cow; or a steer ;or any beast whatever which of another may be the property of another ;' to wantonly kill an ani- person or mal where the effect is to disturb and molest a family ;5 to of the

public. 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 ;8 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 ;1o 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 ;'3 to maliciously cut off the hair of the tail or mane of a horse, with intent to annoy or distress the owner;" to discharge a gun with


Resp. v. Teischer, 1 Dall. 359, 1788; 201, 1875, cited infra, & 1068. As to State v. Council, 1 Overton, (Tenn.) cruel sports, see infra, %% 1461, 1465 a. 305, 1808.

? U. S. v. Logan, 2 Cranch C. C. ? Com. v. Leach, 1 Mass. 59, 1804; 259, 1821; U. S. v. Jackson, 4 Ibid. People v. Smith, 5 Cow. 258, 1825. 483, 1836.

3 State v. Scott, 2 Dev. & Bat. 35, State v. Buckman, 8 N. H. 203, 1836; contra, State v. Wheeler, 3 Vt. 1836. 344, 1831.

9 Resp. v. Teischer, 1 Dall. 359, 1788. * But see a learned article in 7 Law 10 State v. Simpson, 2 Hawks, 460, Rep. (N. S.) 87–93. As to dogs, see 1823. infra, & 1076; supra, 2 872. Cf. Mr. 11 Com. v. Eckert, 2 Browne, 249, Gerry's argument in Davis v. Society 1812; per contra, Brown's Case,3 Greenl. for Prevention of Cruelty, etc., 75 N. 177,1824; and State v. Helmes, 5 Ired. Y. 362, 1878.

364, 1845, where it was held not to be * Henderson's Case, 8 Gratt. 708, indictable to maliciously cut down a 1852.

crop of Indian corn standing in a $ U. S. v. Logan, 2 Cranch C.C. 259, field. But see People v. O'Brien, 60 1821; State v. Briggs, 1 Aikens, 226, Mich. 8, 1886. See infra, X 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. 14 Boyd v. State, 2 Humph. 39, 1840. 1074 State v. Beekman, 3 Dutch. This, however, wasunder a statute pro124, 1858; State v. Manual, 72 N. C. hibiting “disfiguring.Infra, & 1082 d.

with malice to

breach of

the peace.

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 § 1068. The recent inclination, however, so far as the common

law is concerned, is to restrict the party injured to his But offence must be civil remedies, except (1) where the offence is committed

secretly, in the night-time, or in such other way as to inowner, or

flict peculiarly wanton injury, so as to imply malice to the involve a

owner;" or (2) where it is accompanied with a breach

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. Maiming or wounding an animal, also, without killing it, was held in New Jersey, in 1858, to be not indict

Com. v.¡Wing, 9 Pick. 1, 1829. * See People v. Moody, 5 Parker C. Supra, & 167.

R. 568, 1864, where an indictment for ? Com. v. Taylor, 5. Binn. 277, 1812. wantonly and clandestinely injuring See infra, % 1093.

harness in the daytime was held good at * State v. Burroughs, 2 Hals. 426, common law. And see State v. Newby, 1802. Maliciously tearing down, in- 64 N. C. 23, 1870; Northcot v. State, juring, and breaking telephone wires 43 Ala. 330, 1869. Under the English are indictable as malicious mischief at statutes, see R. v. Martin, L. R. 8 Q. common law. State v. Watts, 48 Ark. B. D. 54. 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." 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.

§ 1069. It has been shown that whenever goods are fraudulently taken against the owner's will animo furandi, the offence

Distinis larceny; while when they are simply maliciously in

guishable jured, without being taken animo furandi, it is malicious from

larceny by mischief. It must also be noticed that there are articles absence of of property not objects of larceny (e. g., real estate, dogs, steal. etc.)," for maliciously injuring which a person may be indicted.

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

intent to

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' State v. Beekman, 3 Dutch. (N. J.) fendant, who had been fighting with 124, 1858. See, also, to same effect, other persons in the street, after being R. v. Ranger, 2 East P. C. 1074; State turned out of a public house, went v. Allen, 72 N. C. 114, 1875.

across the street, and picked up a State v. Phipps, 10 Ired. 17, 1849; stone, and threw at them. The stone Dawson v. State, 52 Ind. 478, 1876; missed them, passed over their heads, Illies v. Knight, 3 Tex. 312, 1848; and broke a window in a public house. State v. Enslow, 10 Iowa, 115, 1860; The jury found that he intended to State v. Williamson, 68 Iowa, 351, 1886. hit one or more of the persons he had Under the latter head fall cruel games, been fighting with, and did not intend such as cock-fighting. Infra, & 1465 a. to break the window. It was held by

* But see, as to some extent conflict- all the judges, that upon this finding ing with views of the text, State v. the prisoner was not guilty of the Leavitt, 32 Me. 183, 1851.

charge within the above statute. It * See infra, 82 1076, 1082 d.

was held, also, that to support a con• Com. v. Walden, 3 Cush.558, 1849; viction under sec. 51, there must be a State v. Robinson, 3 Dev. & Bat. 130, wilful and intentional doing of an un1838; Wagstaff v. Schippel, 27 Kans. lawful act in relation to the property 450, 1882. See Davis v. Society for damaged. See supra, % 120. Prevention of Cruelty, etc., 75 N. Y. In Com. v. Williams, 110 Mass. 401, 362, 1879; 21 Alb. L. J. 265.

1872, it was held that for a conviction In R. v. Pembliton, 12 Cox C. C. under the statute of 1862, c. 160, which 607; L. R. 2 C. C. R. 119, the defen- provides for the punishment of any dant was indicted for unlawfully and one who “wilfully or maliciously inmaliciously committing damage upon jures” a building, it is not enough a window in the house of the prose- that the injury was wilful and intencutor, contrary to the 23 & 24 Vict. tional, but it must have been done out c. 97, s. 51. It appeared that the de- of cruelty, hostility, or revenge.

Malice is

the offence.

malice to the owner or possessor," though such owner or possessor

is personally unknown to the wrongdoer ;3 but there is essential to ground to argue that malignant cruelty to an animal is

indictable at common law, irrespective of particular malice to the owner, when there is shock or scandal to the community ;and that a man may in such cases be indicted for malicious cruelty to an animal belonging to himself. The same reasoning would lead us to conclude that malignant and intentional injury to public works of art, or to public libraries, is indictable, irrespective of malice to individuals. $ 1071. The usual line of evidence as to proof and disproof of

malice is here admissible. Malice may be inferred from be in ferred declarations; from prior acts; and even from the peculiar

malignity of the act.? § 1072. Malice may be negatived by showing that the act was

Malice is to

from facts.

1 R. v. Austen, R. & R. 490; are regarded as convertible with Pearce's Case, 2 East P. C. 1075; State “maliciously.” Thomas v. State, 14 v. Beekman, 3 Dutch. 124, 1858; State Tex. App. 200, 1883. v. Latham, 13 Ired. 33, 1851 ; State v. 2 Stone v. State, 3 Heisk. 457, 1872. Robinson, 3 Dev. & Bat. 130, 1838; 3 State v. Linde, 54 Iowa, 139, 1880. State v. Hill, 79 N. C. 656, 1879; State * R. v. Tivey, 1 C. & K. 704; U. S. v. Newby, 64 Ibid. 23, 1870; State v. v. Jackson, 4 Cranch C. C. 483, 1836 ; Sheets, 89 Ibid. 543, 1883; State v. Stage Horse Cases, 15 Abb. Pr. (N. Doig, 2 Rich. (S. C.) 179, 1845; State v. S.) 51, 1873 ; Brown v. State, 26 Ohio Pierce, 7 Ala. 728, 1845 ; Northcot v. St. 176, 1875. As to cruelty in dog State, 43 Ibid. 330, 1869 ; Hobson v. and cock-fighting, see infra, & 1465 a. State, 44 Ibid. 380, 1870; State v. 5 State v. Avery, 44 N. H. 392, 1863. Wilcox, 3 Yerg. 278, 1832; Duncan Under statute malice to owner may v. State, 49 Miss. 331, 1873; Wright not be essential. R. v. Tivey, 1 C. & v. State, 30 Ga. 325, 1860; Chappell K. 704, cited infra, & 1082 d. v. State, 35 Ark. 345, Branch 6 See, fully, Whart. Crim. Ev. v. State, 41 Tex. 622, 1874; State v. 7 State v. Williamson, 68 Iowa, 351, Enslow, 10 Iowa, 115, 1860; U. S. 1886; Territory v. Olsen, 6 Utah, v. Gideon, 1 Minn, 292, 1856; State 284, 1889; People v. Keeley, 81 Cal. v. Williamson, 68 Iowa, 351; 1886; 210, 1889. See R. v. Welch, 13 Cox though, under Tennessee statute, C. C. 121; Allison v. State, 42 Ind. see State v. Council, 1 Overton, 354, 1873. See, for other cases, infra, (Tenn.) 305, 1808; Hampton v. State, & 1082 d. 10 Lea, 639, 1882. In England by & As, the protection of property statute (R. v. Tivey, 1 C. & K. 705) against a persistent and defiant tresmalice to the owner need not now be pass upon the rights of its owner. proved. As to Alabama, see Tatum People v. Kane, 142 N. Y. 366, 1894; v. State, 66 Ala. 465, 1880. In Texas see, also, Brady v. State, (Tex.) 26 S. the qualifying terms of the statute are W. Rep. 621, 1894; North Carolina v. "wilfully” and “wantonly.” These Vanderford, 35 Fed. Rep. 282, 1888.

1880 ;

induced by other causes; e. g., that an animal killed was vicious, and was trespassing on the defendant's grounds, threaten

May be ing hurt which could not otherwise be averted." But negatived

by proof of unless an animal thus trespassing is vicious, and cannot other

motives. be safely driven out, so that killing or maiming him is the defendant's only safe means of riddance, killing or maiming is not justifiable, because the animal trespassed even within a cultivated inclosed field. And malice may also be disproved, by proof that the object of the defendant was not malicious but friendly.3 And on a charge of cruelly over-driving a horse, ignorance and want of malice are a defence. $ 1072 a. An honest belief in title is a defence to an Honest be

lief in title indictment for a malicious trespass. And this is pecu- a defence liarly the case when the trespass is the removal of fences. tious tres

§ 1073. Consent of owner, when malice against the pass. owner is alleged, is a defence. But the onus of proving Consent of consent is on the defendant.?

§ 1074. To sustain a conviction, there must be proof Injury of injury done to such an extent as to impair utility, or such as to

niust be materially diminish value. 8


utility $ 1075. As in larceny, the owner of the property in

Owner is jured may be a witness for the prosecution.”

competent $ 1076. Not merely personal property, as has been witness.

owner is a defence.



* R. v. Prestney, 3 Cox C. C. 505; 1878; Goforth v. State, 8 Humph. 37, Wright v. State, 30 Ga. 325, 1860; 1847; Malone v. State, 11 Lea, 701, Farmer v. State, 21 Tex. App. 423, 1883; Dawson v. State, 52 Ind. 478, 1886; Reedy v. State, 22 Tex. App. 271, 1876; Barlow v. State, 120 Ind. 56, 1886; McMahan v. State, 29 Tex. 1889. App. 348, 1891. See State v. Waters, 6 In Palmer v. State, 45 Ind. 388, 6 Jones, (N. C.) 276, 1859; Hodge v. 1873, the point in the text is sustained State, 11 Lea, 528, 1883; Thomas v. by Downey, C. J., citing Howe v. State, 14 Tex. App. 200, 1883. Infra, State, 10 Ind. 492, 1858. Windsor v. 2 1082 d.

State, 13 Ibid. 375, 1859. Snap v. People, 19 Ill. 80, 1857. down a fence in the exercise of a sup* R. v. Mogg, 4 C. & P. 364. posed legal right is not indictable

* Com. v. Wood, 111 Mass. 408, under the Pennsylvania statute. Com. 1873.

v. Drass, 146 Pa. 55, 1892. Infra, 1077 ; R.v. Langford, 1 C. State v. Whittier, 21 Me. 341, & Marsh. 602; R. v. Matthews, 14 Cox 1842; Welsh v. State, 11 Tex. 368,1854. C. C. 5; Dye v. Com., 7 Gratt. 662, But see Govitt v. State, 25 Tex. App. 1851; Sattler v. People, 59 Ill. 68, 419, 1888. See supra, 8% 141 et seq. 1871; Howe v. State, 10 Ind. 492, & Com. v. Soule, 2 Metc. 21, 1840 ; 1858; Windsor v. State, 13 Ibid. 375, State v. Cole, 90 Ind. 112, 1883. 1859; Lossen v. State, 68 Ibid. 437, 9 State v. Pike, 33 Me. 361, 1851.


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