offender within this law, the malice must be directed against the owner of the cattle, and not merely against the animal itself;"1 though the reasons for this doctrine are not quite apparent in the mere language of the English cases. Now, as to the— 2 434. Terms of old English statutes.-The cases to this doctrine having all risen under the Black Act, East derives it from the preamble. And he deduces the same result from the earlier enactment of 37 Hen. 8, ch. 7. The word "maliciously " alone3 he deems inadequate to signify this restricted form of malice. It seems to the present writer that, while he is plainly correct as to the effect of the word "maliciously," he is mistaken in supposing that the preamble of the Black Act furnishes any just foundation for the doctrine. 12 East, P. C. 1072. 2 The following are the principal English cases on this head: Rex v. Austen, Russ. & Ry. 490, holding that malice against a servant or relation of the owner is not sufficient; but, in Rex v. Salmon, Russ. & Ry. 26, it appears to have been held that malice against the owner is not essential on a charge of setting fire under this statute; Rex v. Pearce, 1 Leach, 527, 2 East, P. C. 1072; Rex v. Kean, 2 East, P. C. 1073; s. c. nom. Rex v. Hean, 1 Leach, 527, note; Rex v. Shepherd, 1 Leach, 539, 2 East, P. C. 1073; Anonymous, 2 East, P. C. 1073, 1 Leach, 540, note; in which several cases malice or resentment toward the animal was adjudged insufficient; it must be against the owner. 3 The exact words are "unlawfully and maliciously." Ante, § 431. For the legal meaning of "maliciously," see Crim. Law, I, § 429. 42 East, P. C. 1062, 1063, 1071, 1072. For example, Stat. 22 and 23 Car. 2, ch. 1, § 7, makes punishable any one who, "on purpose and of malice aforethought, and by lying in wait, shall unlawfully cut out or disable the tongue, etc., of any subject, with intention in so doing to maim or disfigure him;" and this author observes that the malice need not "be directed So that, unless against any particular individual. If it be conceived against all persons who may happen to fall within the scope of the perpetrator's design, the particular mischief done to any one shall be connected with the general malignant intent, so as for the statute to attach upon the offenders. This is necessarily to be inferred from Carroll's Case [Rex v. Carroll, 1 Leach, 55; s. c. nom. Rex v. Carrol, 1 East, P. C. 394], who was an entire stranger to the gentleman whom he thus assaulted, and who could not have been personally in his contemplation till the occasion occurred on the sudden. So, if a blow be intended to maim one, and by accident maim another, the party is equally liable to be indicted or appealed for such maim." 1 East, P. C. 396. The same doctrine, it may be added, is applied to the "malice aforethought" of murder. Crim. Law, I, § 328; II, § 675 et seq. 5 As to how a preamble is to be regarded in interpretation, see ante, SS 48-51, 82, 200. "The preamble is: "Whereas several ill-designing and disorderly per sons have of late associated themselves under the name of blacks, and entered into confederacies to support and assist one another in stealing and destroying of deer, rob the reason suggested in the last section is the true one, the doctrine itself is inherently unsound. - § 435. With us, as to malice against owner. There are, in our American statutes, differences in terms requiring diversities of decision. But whether, where a general expression is simply qualified by the word "maliciously," or "wilfully and maliciously," as in the English Black Act, interpretation will, with us, restrict the malice to such as has for its object the owner, in analogy to the malicious mischief of the common law, or will give to the word "maliciously" the full meaning which it bears in the other departments of the law of crime, is a question whereof we appear to have no judicial discussions of real value, yet whereon judicial opinion differs. Or perhaps nice diversities of statutory expression may in a measure account for apparent differences; so that, in legal fact, the question depends partly on the particular language of the statute and partly on differing views of judges. bing of warrens and fish ponds, cutting down plantations and trees, and other illegal practices, and have, in great numbers, armed with swords, fire-arms and other offensive weapons, several of them with their faces blacked, or in disguised habits, unlawfully hunted in forests belonging to his majesty, and in the parks of divers of his majesty's subjects, and destroyed, killed and carried away the deer, robbed warrens, rivers and fish ponds, and cut down plantations of trees; and have likewise solicited several of his majesty's subjects, with promises of money, or other rewards, to join with them; and have sent letters in fictitious names to several persons, demanding venison and money, and threatening some great violence if such their unlawful demands should be refused, or if they should be interrupted in or prosecuted for such their wicked practices, and have actually done great damage to several persons who have either refused to comply with such demands or have endeavored to bring them to justice, to the great terror of his Now, majesty's peaceable subjects." This question could not have arisen in England since 1827, when, by the consolidating act of 7 and 8 Geo. 4, ch. 30, § 25, it was expressly made immaterial "whether the offense shall be committed from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise." For the interpretation whereof, see Reg. v. Tivey, 1 Den. C. C. 63, 1 Car. & K. 704. This provision is continued in the present act of 24 and 25 Vict., ch. 97, § 58. 1 Irvin v. S., 7 Tex. Ap. 78; Rountree v. S., 10 Tex. Ap. 110; Johnson v. S., 61 Ala. 9; Reg. v. Prestney, 3 Cox, C. C. 505; S. v. Rector, 34 Tex. 565. 2 Hobson v. S., 44 Ala. 380, 381; Johnson v. S., 37 Ala. 457; S. v. Pierce, 7 Ala. 728; S. v. Enslow, 10 Iowa, 115; Moseley v. S., 28 Ga. 19C; Wright v. S., 30 Ga. 325, [76 Am. D. 656;] S. v. Hambleton, 22 Mo. 452; Chappell v. S., 35 Ark. 345; Nutt v. S., 19 Tex. 340; Brown v. S., 26 Ohio St. 176; Stone v. S., 3 Heisk. 457; Gaskill v. S., 56 Ind. 550; S. v. Linde, 54 Iowa, 139; S. v. § 436. In reason, there can be no malice towara a mere inanimate object; and malice against a lower animal will be inadequate, because, by the common law, the animal has ne recognized rights. Under a statute simply silent as to the mental condition of the perpetrator,2 the malice of the common law of this offense will be required, in obedience to the rule that statutes in general terms are to be interpreted by the common law. But where the specific "maliciously" is employed, the evil intent is legislatively defined; and the question is, whether is meant the restrictive malice of this offense, or the general malice of the law of crime. In a statute merely affirming the common law as to the act of mischief, the former might well be taken to be the meaning of "maliciously;" but where, as in most of our enactments on this subject, the range is wider, evidently departing from the restricted common law as to the act, the same legislative purpose should be inferred as to the intent, giving the word "maliciously" its ordinary meaning. § 437. Illustrative points. been held are, that, Some illustrations of what has Passion with animal — Bestiality.- Where the killing or maiming of an animal is in a passion against it, or it is maimed to make it quiet while bestiality is being committed with it,' the transaction lacks the sort of malice required in malicious mischief. In like manner, Trespassing animal.- One who shoots an animal in the habit of trespassing on his fields and destroying his crops, while in the act of trespass, not from malice but to preserve his crops, does not commit this offense, though he incurs a civil liability. Again,― Lewis, 10 Rich. 20; S. v. Webster, 17 N. H. 543; Com. v. Williams, 110 Mass. 401; [S. v. Foote, 71 Conn. 737, 43 Atl. R. 488; Finderburk v. S., 75 Miss. 20, 21 S. R. 658; Terr. v. Crozier, 6 Dak. 8. 50 N. W. R. 124; S. v. Phipps, 95 Iowa, 491, 64 N. W. R. 411; Ex parte Eads, 17 Neb. 145, 22 N. W. R. 352.] 1 Crim. Law, I, §§ 594-597a. 2 Ante, § 432a. 3 Ante. §§ 7, 75, 82, 88, 117, 119, 131– 144, 155, 432a. • Ante, § 432a. 5 As see, perhaps, Com. v. Williams 110 Mass. 401, 402. 6 Rex v. Kean, 2 East, P. C. 1073; Rex v. Shepherd, 1 Leach, 539, 2 East, P. C. 1073; Anonymous, 2 East, P. C 1073. 7 Rex v. Pearce, 1 Leach, 527, 2 East, P. C. 1072. Compare this with Reg. v. Welch, 1 Q. B. D. 23, 13 Cox, C. C. 121. 8 Wright v. S., 30 Ga. 325, [76 Am. D. 656;] Chappell v. S., 35 Ark. 345. Malice against owner presumed. As observed by Chitty,' "it is not necessary to give evidence of express malice against the owner, which will be presumed until the contrary appears. And in Dawson's case, who was indicted for poisoning horses, in order to prevent them from running the race, defendant having betted against them, it was holden that this intent was sufficient to bring the case within the act, and the defendant was convicted." But where the proven facts rebut the presumption of malice, the result is otherwise.* III. THE INDICTMENT AND EVIDENCE. § 438. In general. Something was just said of the evidence. The indictment follows the rules explained in "Criminal Procedure" governing all indictments, and adapts itself to the special facts and the particular statutory terms. Thus,§ 439. "Feloniously."- Where, as under the Black Act, and some other of the English statutes, the offense is a felony, the indictment must lay it to have been committed "feloniously." But under most of our American enactments it is misdemeanor, and then this word is not required.R § 440. Word to designate animal.-Some discussions of this question in the last chapter will be helpful here. Under the before-quoted section of the Black Act, the expression being "any cattle," 10 a form in Chitty designates the animal simply as "one black gelding; "" and this, either with or without the superfluous "black," is adequate, both by the English and American authorities. There is no need to add, what the court And see Daniel v. Janes, 2 C. P. D. 351; Williams v. Dixon, 65 N. C. 416; Lott v. S., 9 Tex. Ap. 206; Bass v. S., 63 Ala. 108; Jones v. S., 3 Tex. Ap. 228; Gaskill v. S., 56 Ind. 550; Thomas v. S., 30 Ark. 433, 435; McDaniel v. S., 5 Tex. Ap. 475; [McMahan v. S., 29 Tex. Ap. 348, 16 S. W. R. 171; Farmer v. S., 21 Tex. Ap. 423, 2 S. W. R. 767; Woods v. S., 27 Tex. Ap. 586, 11 S. W. R. 723.] 13 Chit. Crim. Law, 1087, note. 22 East, P. C. 1074. The American editor refers also to S. v. Council, 1 Tenn. 305. To the same effect see also will take notice of, that the gelding is "cattle." And this principle applies to the indictment on all the statutes of this general sort. Nor will the generic term of the statute alone suffice in the indictment, as, for example, "certain cattle," the species under it being required for identification. But to weave into the allegation the statutory word indicating the genus is harmless and proper, if the pleader chooses; as, the statutory word being "beast," to say a "horse beast."4 3 § 441. Overlying in meaning.- The conflicting views as to statutory terms overlying one another in meaning, already considered, should be duly heeded by the pleader. Now, whatever be the true doctrine on this subject, Specific followed by general. If the statute, after enumerating animals by their species, adds a term indicating a genus,— as, "horse, mare, ewe, sheep, or other beast," the indictment for an injury to one not within the enumeration yet within the genus must designate it by its species. It is immaterial that the word for the species is not in the statute; nor need the statutory word for the genus be woven into the allegation, though, if the pleader chooses, it may be. Such is the deduction of reason from the doctrines of the last section, or the doctrine itself. § 442. Cattle. The word "cattle" in these statutes includes horses, mares, colts, geldings, and the like,' pigs, asses,' sheep,10 1 Ante, § 426; Crim. Pro., I, § 619; Rex v. Paty, 2 W. Bl. 721; Reg. v. Tivey, 1 Den. C. C. 63; Taylor v. S., 6 Humph. 285, 286; S. v. Abbott, 20 Vt. 537; S. v. Enslow, 10 Iowa, 115; S. v. Hambleton, 22 Mo. 452; S. v. Pearce, Peck, 66; S. v. Slocum, 8 Blackf. 315; Swartzbaugh v. P., 85 Ill. 457; Rivers v. S., 10 Tex. Ap. 177. 2 Crim. Pro., I, §§ 568, 570, 619; Rex v. Chalkley, Russ. & Ry. 258. And compare with ante, § 426; [McIntosh v. S., 18 Tex. Ap. 284.] 3 S. v. Clifton, 24 Mo. 376. 4 S. v. Pearce, Peck, 66. Under the statutory term "cattle," the words "a certain horse beast, to wit, one mare," were held to be adequate. S. v. Hambleton, 22 Mo. 452; [S. v. Credle, 91 N. C. 640; Smythe v. S., 17 Tex. Ap. 244.] 5 Ante, §§ 246c-248, 426; Crim. Pro., I, § 620; Rex v. Beaney, Russ. & Ry. 416. "Ante, SS 245-2466. 7S. v. Hambleton, 22 Mo. 452; Rex v. Paty, 1 Leach, 72, 2 East, P. C. 1074, 2 W. Bl. 721; Rex v. Moyle, 2 East, P. C. 1076; Rex v. Mott, 2 East, P. C. 1075, 1 Leach, 73, note; Reg. v. Tivey, 1 Den. C. C. 63, 1 Car. & K. 704; ante, § 440. 8 Rex v. Chapple, Russ. & Ry. 77. |