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land, a charge of stealing a “cow” was adjudged not to be sustained by proof of the larceny of a heifer.' But in locali. ties and circumstances not governed by this rule, the word designating an animal includes the young with the old; as, a mare filly is a “mare," 2 a pig is a “hog,”: a heifer is a “cow,”. and a calf is within the term “cattle." Under the present

5 Texas statute, the words of which are simply “any cattle,” the allegation need not contain this word “cattle,” but merely to designate the animal by its species -- as, a "calf,” “steer,” "ox," or the like — is sufficient. On the other hand, if the pleader chooses, he may say, instead of this, "one head of neat cattle,"7"one beef cattle," 8 or the like. He must not create

“ a variance; and it will be such if the allegation is one of“ beef steer,” and the proof is of only a “steer,” 10 or of a “cow” and

» the evidence shows the animal to have been a "bull," 11 or if he misdescribes the color.12 The words “a yearling,” and no more, are not sufficient.13

$ 427. Value.- A rule pervading the entire procedure in larceny is that the value of the thing stolen must be alleged

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ignated. Taylor v. S., 44 Ga. 263; 350; S. v. De Witt (Mo.), 53 S. W. R. [Brown v. S., 86 Ga. 633, 13 S. E. R. 429; Terr. v. Christman, 9 N. M. 582, 20; Nightingale v. S., 94 Ga. 395, 21 58 Pac. R. 343.] S. E. R. 221.] See ante, $ 248; Marsh- 8 Duval v. S., 8 Tex. Ap. 370. See all v. S., 31 Tex. 471.

Hubotter v. S., 32 Tex. 479. 1 Rex v. Cook, 1 Leach, 105, 2 East, 9 That the word “cattle alone P. C. 616.

would be too indefinite, see post, 2 Rex v. Welland, Russ. & Ry. 494. & 440; (S. v. Bookhouse, 10 Wash. 87,

3 Ante, S 247, note. (Where the in- 38 Pac. R. 862; S. v. Laun, 80 Mo. 241; dictment charged stealing of “chick. S. v. Bowers (Mo.), 1 S. W. R. 288. ens," it was supported by proof of But see Melntosh v. S., 18 Tex. Ap. stealing “hens." S. v. Bassett, 34 284; Walton v. S. (Tex. Cr. R.), 55 La. An. 1108.]

S. W. R. 566.] 4 Parker v. S., 39 Ala. 365. And see 10 Cameron v. S., 9 Tex. Ap. 332. Watson v. S., 55 Ala. 150; [S. v. Crow, 11 S. v. McMinn, 34 Ark. 160; (Terr. 107 Mo. 341, 17 S. W. R. 745.]

v. Martinez (Ariz.), 44 Pac. R. 1089. 5 Grant r. S., 3 Tex. Ap. 1.

12 Courtney v. S., 3 Tex. Ap. 257; 6 Id., at p. 5; Robertson v. S., 1 Tex. Wolf v. S., 4 Tex. Ap. 332. Ap. 311. And see post, 8 440: (Smith 13 Stollenwerk v. S., 55 Ala. 142. v. S., 24 Tex. Ap. 290, 6 S. W. R. 40. And see Rivers v. S., 57 Ga. 28; AlderSee also Sanders 2. S., 86 Ga. 717, 12 man v. S., 57 Ga. 367. [The statutory S. E. R. 1058; S. v. Baden, 42 La. An. enumeration of different animals ap295, 7 S. R. 582.]

plies to live animals only. Golden 7 S. v. Murphy, 39 Tex. 46;[Matthews v. S., 63 Miss. 466; P. v. Smith, 112 v. S. (Tex. Cr. R.), 51 S. W. R. 915; S. Cal. 333, 44 Pac. R. 663.] v. Barkuloo, 18 Wash, 141, 51 Pac. R.

and proved when the punishment or its degree depends on value; but, when it does not, it need not be. And within this rule are the larcenies now under consideration; under most of the statutes the value is not material, under some it is.' When not material, it is often in practice alleged,- mere surplusage which does no harm.

Against form of statute.— Of course, where the statute affects anything more than the punishment, the indictment concludes against the form of the statute. But where, in England, the larceny of a mare, saddle and bridle was alleged, and the conclusion was simply as at the common law, it was held that, since the stealing of the mare, as well as of the saddle and bridle, was a common-law felony, not even altered by the statute, this would suffice, and the statutory punishment attach to the stealing of the mare.

$ 428. Other particulars.- In most other particulars the procedure and the law, under these statutes, conform to the common law. Thus,

Joinder.— Counts charging larcenies of animals and larcenies at the common law may be joined."

Ownership (Mark or brand).— The ownership of the ani. mal stolen must be alleged and proved conformably to the common-law rules. In Texas, and perhaps some other states, by reason of statutory regulations, there are special considerations connected with the mark or brand, recorded, and on the animal.6

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1 Crim. Pro., I, SS 541, 567; II, also S. v. Ward, 19 Nev, 297, 10 Pac. SS 713, 714, 736, 751, 764–767: S. v. R. 133. Compare Waters v. P., 104 Pedigo, 71 Mo. 443; McDowell v. S., 61 Ill. 544.] Ala. 172; Williams v. S., 10 Tex. Ap. 4 Barton v. S., 18 Ohio, 221. And 8; Wells v. S., 11 Neb. 409; Adams v. see S. v. Nutting, 16 Vt. 261; [S. v. S., 60 Ala. 52; S. v. Corley, 13 S. C. 1; Darden, 117 N. C. 697, 23 S. E. R. 106.) S. v. Daniels, 32 Mo. 558; Sheppard 5 Grant v. S., 3 Tex. Ap. 1; Wells v. v. S., 42 Ala. 531; (Walker v. S., 50 S., 11 Neb. 409; Turner v. S., 7 Tex. Ark. 532, 8 S. W. R. 939; Terr, v. Pen- Ap. 596; Burt v. S., 7 Tex. Ap. 578; dry, 9 Mont. 67, 22 Pac. R. 760; S. v. Wilson v. S., 3 Tex. Ap. 206; Butler Hill, 46 La. An. 736, 15 S. R. 145; v. S., 3 Tex. Ap. 48; S. v. France, 1 Hoge v. P., 117 Ill. 35, 6 N. E. R. 796; Tenn. 434; (Butler v. 8., 91 Ala. 87, 9 Chestnut v. P., 21 Col. 512, 42 Pac. R. S. R. 191. See Mizell v. S., 38 Fla. 20, 656; S. v. Young, 13 Wash. 584, 43 20 S. R. 769; Houston v. S., 13 Tex. Pac. R. 881.]

Ap. 595.] 2 Ante, SS 166, 167.

6 Lockhart v. S., 3 Tex. Ap. 567; 3 Williams v. Reg., 7 Q. B. 250. [See Jones v. S., 3 Tex. Ap. 498; Smith v.

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Trespass and asportation - (Accustomed range). - The trespass and asportation must be charged and shown according to the rules of the common law; or, in a state, for example, like Texas,' where a statute has changed the common-law limits of larceny and no asportation is required, the trespass only will suffice as to this part of the case. In our new and grazing states, domestic animals simply on their accustomed range are deemed, for purposes of larceny, in the possession of their owners.

$ 429. Felonious intent. The same felonious intent must appear as in other larcenies. If, for example, one stealing other property takes a horse simply to get off with the other things, then turns it loose, he does not commit larceny of the horse.

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S., 1 Tex. Ap. 133; Wilson v. S., supra; 3 Moore v. S., 8 Tex. Ap. 496; Deggs Poag v. S., 40 Tex. 151; Hutto v. S., 7 v. S., 7 Tex. Ap. 369; Jones v. S., 3 Tex. Ap. 44; Allen v. S., 8 Tex. Ap. Tex. Ap. 498; [S. v. Everage, 33 La. 360; Spinks v. S., 8 Tex. Ap. 125; An. 120; Borer v. S. (Tex. Cr. R.), 28 Renfro v. S., 9 Tex. Ap. 229; Smith v. S. W. R. 951.] S., 8 Tex. Ap. 141; Grant v, S., 3 Tex. 48. v. Thomas, 30 La. An. 600; Ap. 1; Stoneham v. S., 3 Tex. Ap. 594; Spinks v. S., 8 Tex. A p. 125; McPhail Robinson v. S., 5 Tex. Ap. 519; Fisher v. S., 9 Tex. Ap. 164; Brown v. 8., 9 V. S., 4 Tex. Ap. 181; Wolf v. S., 4 Tex. Ap. 81; S. v. Murphy, 84 N. C. Tex. Ap. 332; Sweat v. S., 4 Tex. Ap. 742; [Beatty v. S., 61 Miss. 18; Com. 617; Beyman v. Black, 47 Tex. 558; v. Butler, 144 Pa. St. 568, 24 Atl. R. [De Garca v. Galvan, 55 Tex. 53.] 910; P. v. Devine, 95 Cal. 227, 30 Pac. 1 Ante, SS 413, 414.

R. 378; Brooks v. S. (Tex. Cr. R.), 27 2 Harris v. S., 62 Ga. 337; Fowle v. S. W. R. 141; Guest v. S., 24 Tex. Ap. S., 47 Wis. 545; Jackson v. S., 7 Tex. 530, 7 S. W. R. 242; Hendricks v. S. Ap. 363; Burt v. S., 7 Tex. Ap. 578; (Tex. Cr. R.), 56 S. W. R 55. See Turner v. S., 7 Tex. Ap. 596; McPhail Warden v. S., 60 Miss. 638.] v. S., 9 Tex. Ap. 164, and Hall v. S., 41 5 Rex v. Crump, 1 Car. & P. 658. Tex. 287, compared with S. v. Butler, And see Dove v. S., 37 Ark. 261; 65 N. C. 309, as to killing the animal; (Lucas v. S., 33 Tex. Cr. R. 290, 26 S. S. v. Mansfield, 33 Tex. 129; (Williams W. R. 213. See also Hughes a Terr. v. S. (Tex. Cr. R.), 51 S. W. R. 904; (Okl.), 56 Pac. R. 708.] Dickson v. Terr. (Ariz.), 56 Pac. Ro 971.]

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CHAPTER XXXI.

STATUTORY ENLARGEMENTS OF THE COMMON-LAW MALICIOUS

MISCHIEF

§ 430. Introduction.
431, 432. Generally of the statutes
432a-437. Nature of the malice.
438–4476. Indictment and evidence
448, 449. Further of the offense.

§ 430. Elsewhere — (Common law).— In "Criminal Law” and “ Criminal Procedure,” the unwritten law of this offense, with some explanations of the statutes, and the procedure for punishing it, are given.'

Here, and how divided. In this chapter we shall consider, I. Generally of the statutes; II. The nature of the malice; III. The indictment and evidence; IV. Further of the offense.

I. GENERALLY OF THE STATUTES.

$.431. English legislation. The early English statutes on this subject are numerous, diversified and complicated. There is an excellent view of them in East's Pleas of the Crown.? But no one of them appears ever to have had any common-law force with us. In 1827 all were in England digested into the forty-three sections of 7 and 8 Geo. 4, ch. 30, which superseded them, covering a wide range. Thence onward legislation accumulated; till, in 1861, came 24 and 25 Vict., ch. 97, in seventynine sections, “to consolidate and amend the statute law of England and Ireland relating to malicious injuries to property.” Of the early statutes the most noted is 9 Geo. 1, ch. 22, known as the

Black Act. It took its name from the occasion of making it, and from the recitation in the preamble, that “several illdesigning and disorderly persons have of late associated them

1 Crim. Law, II, S 983 et seq., and the places in Vol. I there referred to; Crim. Pro., II, S 837 et seq.

2 2 East, P. C. 1045–1103.
3 Crim. Law, II, & 999.

selves under the name of blacks.It extends to some other subjects in addition to malicious mischief. A part of the first section is: “If any person, etc., shall unlawfully and maliciously kill, maim or wound any cattle; or cut down or otherwise destroy any trees planted in any avenue or growing in any garden, orchard or plantation, for ornament, shelter or profit; or shall set fire, etc., every person so offending, being thereof lawfully convicted, shall be adjudged guilty of felony, and shall suffer death as in cases of felony, without benefit of clergy."

§ 432. American legislation.— The legislation of our states differs; yet mainly copying, more or less closely, the English. We saw something of it in “Criminal Law.” Illustrative American expressions are: “Wilfully and wantonly kill, maim, etc., any horse, etc., of another, with intent to injure the owner thereof;"2 “wilfully or maliciously kill or destroy or wound the beast of another;"3 “maliciously or mischievously destroy or injure any property of another, or any public property;"4" wilfully and maliciously enter any orchard, nursery, garden or cranberry meadow, and take away, mutilate or destroy any tree, shrub or vine, or steal, take and carry away any fruit or flower, without the consent of the owner thereof;"5

wilfully and maliciously commit an act whereby the real or personal property of another shall be injured;" 6 " kill Comitting wilfully, etc.] or abuse any horse, cow, hog, etc., the property of another.”? And the diversified forms might be greatly augmented by quotations from the reports, or from the statutebooks, were it desirable.

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II. THE NATURE OF THE MALICE.

8 432a. Evil intent.- Whatever be the terms of any one of these statutes, interpretation restricts it — for so it does all criminal statutes 8 — to what is done with the law's criminal in

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1 Crim. Law, II, SS 986-990, 995, 999, ticle." Bates v. S., 31 Ind. 72; [Hamp1000.

ton v. S., 10 Lea (Tenn.), 639.] 2 S. v. Rector, 34 Tex. 565; slightly 5 Com. v. Dougherty, 9 Gray, 349; different in Uecker v. S., 4 Tex. Ap. (S. v. Priebnow, 14 Neb. 484, 16 N. W 234. And see S. v. Abbott, 20 Vt. 537. R. 907.] 3 Taylor v. S., 6 Humph. 285.

6 S. v. Webster, 17 N. H. 543. 4 S. v. Merrill, 3 Blackf. 346; S. v. 7 S. v. Simpson, 73 N. C. 269. Slocum, 8 Blackf. 315. “Any tree, 8 Ante, SS 132, 231. stone, timber or other valuable ar

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