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tent. For example, an act performed under a bona fide claim

" of right, or in the discharge of an official duty, or in the lawful defense of one's property,' is not an indictable malicious mischief, however completely within the words of a statutory inhibition. If the form of the criminal intent is specified in the enactment, it, exactly, will be required by the courts, nothing more will be, and no substitute will suffice. But where its form is not thus defined, it will take a form indicated by the nature of the case, compared with the law of the criminal intent in general, and in particular with what is special therein to this offence at the common law. Such is the doctrine of judicial reason, on which also the cases evidently proceeded, though perhaps not appearing in just these words among the judicial utterances. Thus,

§ 433. Malice against owner.- As explained in “Criminal Law,” the evil intent in common-law malicious mischief must, by the predominating opinion, consist of malice against the owner of the property injured or destroyed; instead of, for example, where an animal is the subject of the mischief, malice against the property.? Thereupon, under the English statutes, it became, as East expresses it,"clearly settled, that, in order to bring an

18. v. Simpson, 73 N. C. 269; Daw. And see Lott v. S., 9 Tex. Ap. 206; son v. S., 52 Ind. 478.

Chappell v. S., 35 Ark. 345; [P. v. 2 Reg. v. James, 8 Car. & P. 131 Kane, 142 N. Y. 366, 37 N. E. R. 104; (compared with James v. Phelps, 11 Brady v. S. (Tex. Cr. R.), 26 S. W. R. A. & E. 483, and Fletcher v. Calthrop, 621.) 6 Q. B. 880,887, 888); Reg. v. Matthews, 6 Jones v. S., 9 Tex. Ap. 178; Reg. v. 14 Cox, C. C. 5; Windsor v. S., 13 Fisher, Law R. 1 C. C. 7, 10 Cox, Ind. 375; S. v. Crosset, 81 N. C. 579. C. C. 146; Branch v. S., 41 Tex. 622; Connected with this question are Brown v. S., 26 Ohio St. 176, 184; S. various modifications of doctrine, de- v. Parker, 81 N. C. 548; S. v. Arnold, pending on the diverse reasons of 39 Tex. 74; S. v. Hussey, 60 Me. 410, cases and the terms of different stat. [11 Am. R. 209;) Duncan v. S., 49 Miss. utes; as, see Castleberry v. S., 62 Ga. 331; (S. v. Martin, 107 N. C. 904, 12 S. 442; Derixson v. S., 65 Ind. 385; Jen- E. R. 194.] kins v. S., 7 Tex. Ap. 146; Daniel v. 6 See the two notes next preceding Janes, 2 C. P. D. 351; S. v. Jackson, the last; S. v. Walters, 64 Ind. 226; 2 Harring. (Del.) 542; Com. v. Wilder, S. v. Bush, 29 Ind. 110; [Pippen v. S., 127 Mass. 1; [Reg. v. Clemens, C. C. 77 Ala. 81; P. v. Keeley, 81 Cal. 210, R. (1898) 1 Q. B. 556; Camp v. S. (Tex. 22 Pac. R. 593; P. v. Olsen, 6 Utah, Cr. R.), 57 S. W. R. 96; Barlow v. S., 284, 22 Pac. R. 163; Heron v. 8., 22 120 Ind. 56, 22 N. E. R. 88.]

Fla. 86.) 3 Schott v. S., 7 Tex. Ap. 616.

7 Crim. Law, II, 8 996. 4 Williams v. Dixon, 65 N. C. 416.

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offender within this law, the malice must be directed against the owner of the cattle, and not merely against the animal itself;"! though the reasons for this doctrine are not quite apparent in the mere language of the English cases. Now, as to the

$ 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” alone : 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. So that, unless 12 East, P. C. 1072.

against any particular individual. If 2 The following are the principal it be conceived against all persons English cases on this head: Rex v. who may happen to fall within the Austen, Russ. & Ry. 490, holding that scope of the perpetrator's design, the malice against a servant or relation particular mischief done to any one of the owner is not sufficient; but, in shall be connected with the general Rex v. Salmon, Russ. & Ry. 26, it ap- malignant intent, so as for the statpears to have been held that malice ute to attach upon the offenders. against the owner is not essential on This is necessarily to be inferred from a charge of setting fire under this Carroll's Case (Rex v. Carroll, 1 Leach, statute; Rex v. Pearce, 1 Leach, 527, 55; s. C. nom. Rex v. Carrol, 1 East, 2 East, P. C. 1072; Rex v. Kean, 2 P. C. 394), who was an entire stranger East, P. C. 1073; 8. C. nom. Rex v. to the gentleman whom he thus asHean, 1 Leach, 527, note; Rex v. saulted, and who could not have been Shepherd, 1 Leach, 539, 2 East, P. C. personally in his contemplation till 1073; Anonymous, 2 East, P. C. 1073, the occasion occurred on the sudden. 1 Leach, 540, note; in which several So, if a blow be intended to maim cases malice or resentment toward one, and by accident maim another, the animal was adjudged insuffi- the party is equally liable to be incient; it must be against the owner. dicted or appealed for such maim."

3 The exact words are “unlawfully 1 East, P. C. 396. The same doctrine, and maliciously." Ante, & 431. For it may be added, is applied to the the legal meaning of “maliciously," "malice aforethought" of murder. see Crim. Law, I, § 429.

Crim. Law, I, § 328; II, S 675 et seq. 4 2 East, P. C. 1062, 1063, 1071, 1072. 5 As to how a preamble is to be reFor example, Stat. 22 and 23 Car. 2, garded in interpretation, see ante, ch. 1, § 7, makes punishable any one SS 48–51, 82, 200. who,“on purpose and of malice afore- 6 The preamble is: “Whereas sevthought, and by lying in wait, shall eral ill-designing and disorderly perunlawfully cut out or disable the sons have of late associated themtongue, etc., of any subject, with in. selves under the name of blacks, tention in so doing to maim or dis- and entered into confederacies to figure him;" and this author observes support and assist one another in that the malice need not“ be directed stealing and destroying of deer, rob

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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. Now,bing of warrens and fish ponds, cut- majesty's peaceable subjects.” This ting down plantations and trees, and question could not have arisen in other illegal practices, and have, in England since 1827, when, by the congreat numbers, armed with swords, solidating act of 7 and 8 Geo. 4, ch. fire-arms and other offensive weap. 30, § 25, it was expressly made im. ons, several of them with their faces material " whether the offense shall blacked, or in disguised habits, un- be committed from malice conceived lawfully hunted in forests belonging against the owner of the property in to his majesty, and in the parks of respect of which it shall be comdivers of his majesty's subjects, and mitted, or otherwise.” For the interdestroyed, killed and carried away pretation whereof, see Reg. v. Tivey, the deer, robbed warrens, rivers and 1 Den. C. C. 63, 1 Car. & K. 704. This fish ponds, and cut down plantations provision is continued in the present of trees; and have likewise solicited act of 24 and 25 Vict., ch. 97, 8 58. several of his majesty's subjects, with 1 Irvin v. S., 7 Tex. Ap. 78; Rounpromises of money, or other rewards, tree v. S., 10 Tex. Ap. 110; Johnson to join with them; and have sent let- v. S., 61 Ala. 9; Reg. v. Prestney, 3 ters in fictitious names to several per- Cox, C. C. 505; S. v. Rector, 34 Tex. sons, demanding venison and money, 565. and threatening some great violence 2 Hobson v. S., 44 Ala. 380, 381; if such their unlawful demands Johnson v. S., 37 Ala. 457; S. v. Pierce, should be refused, or if they should 7 Ala. 728; S. v. Enslow, 10 Iowa, 115; be interrupted in or prosecuted for Moseley v. S., 28 Ga. 19C; Wright 2. such their wicked practices, and have S., 30 Ga. 325, [76 Am. D. 656;] S. v. actually done great damage to sev- Hambleton, 22 Mo. 452; Chappell v. eral persons who have either refused S., 35 Ark. 345; Nutt v. S., 19 Tex. 340; to comply with such demands or Brown v. S., 26 Ohio St. 176; Stone v. have endeavored to bring them to S., 3 Heisk. 457; Gaskill v. S., 56 Ind. justice, to the great terror of his 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 nc recognized rights. Under a statute simply silent as to the mental condition of the perpetrator,” 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;4 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;"s 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. Some illustrations of what has been held are, that, 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. 8 Again,

Lewis, 10 Rich. 20; S. v. Webster, 17 4 Ante, & 432a. N. H. 543; Com. v. Williams, 110 5 As see, perhaps, Com. a Williams Mass. 401; (S. v. Foote, 71 Conn. 737, 110 Mass. 401, 402. 43 Atl. R. 488; Finderburk v. S., 75 6 Rex v. Kean, 2 East, P. C. 1073; Miss. 20, 21 S. R. 658; Terr. v. Crozier, Rex v. Shepherd, 1 Leach, 539, 2 East, 6 Dak. 8. 50 N. W. R. 124; S. v. Phipps, P. C. 1073; Anonymous, 2 East, P. C 95 Iowa, 491, 64 N. W. R. 411; Ex 1073. parte Eads, 17 Neb. 145, 22 N. W. R. 7 Rex v. Pearce, 1 Leach, 527, 2 East, 352.]

P. C. 1072. Compare this with Reg. 1 Crim. Law, I, SS 594-597a.

v. Welch, 1 Q. B. D. 23, 13 Cox, C. C. 2 Ante, S 432a.

121. 3 Ante, SS 7, 75, 82, 88, 117, 119, 131- 8 Wright v. 8., 30 Ga. 325, [76 Am. 144, 155, 43200

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 evi. dence. 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.

$ 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;” II and this, either with or without the

ll superfluous “ black,” 12 is adequate, both by the English and American authorities. There is no need to add, what the court

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And see Daniel v. Janes, 2 C. P. D. Chappell v. S., supra; S. v. Linde, 54 351; Williams v. Dixon, 65 N. C. 416; Iowa, 139; [P. v. Olsen, 6 Utah, 284, Lott v. S., 9 Tex. Ap. 206; Bass v. S., 22 Pac. R. 163.) 63 Ala. 108; Jones v. S., 3 Tex. Ap. 3 Dawson's Case, MS. The indict 228; Gaskill v. S., 56 Ind. 550; Thomas ment is given 3 Chit. Crim. Law, 1088. v. S., 30 Ark. 433, 435; McDaniel v. S., 4 Reg. v. Pembliton, Law R. 2 C. C. 5 Tex. Ap. 475; (McMahan v. S., 29 119, 12 Cox, C. C. 607, 9 Eng. R. 501. Tex. Ap. 348, 16 S. W. R. 171; Farmer 5 Ante, S 437. v. S., 21 Tex. Ap. 423, 2 S. W. R. 767; 6 Ante, $ 431. Woods v. S., 27 Tex. Ap. 586, 11 S. W. ? Reg. v. Gray, Leigh & C. 365. R. 723.)

8 Crim. Pro., I, SS 533–537. 13 Chit. Crim. Law, 1087, note. 9 Ante, S 426.

22 East, P. C. 1074. The American 10. Ante, S 431. editor refers also to S. v. Council, 1 113 Chit. Crim. Law, 1087. Tenn. 305. To the same effect see also 12 Post, 8 443.

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