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Maimand disfigure,distinguished.—“Maim,” and in some measure “disfigure," have been thus considered. Under the words “kill, maim or disfigure,” in an Iowa statute, the court said that to "maim” a domestic animal implies a per

a manent injury; to “disfigure” requires only what will lessen its value to an extent however slight. “Thus,” observed Bald

, win, J., "to shave a horse's main or tail is a disfiguring of the horse, but the injury is not of a permanent character. So the cutting off the hair, or cutting the skin, of a cow or an ox, would tend to destroy the beauty or symmetry of the animal, and would, although not of a permanent character, be an indictable offense. Malice toward the owner of the animal is the ingredient of this offense; and, although the injury may be but very slight, yet [if] it is of such a character as to lessen the value of the animal to the owner, and shows the malicious intention of the person committing the act, we think, under the statute, the offense is complete.” 2

$ 449. “Injure,” — already spoken of, has not been much discussed by the courts. It is an “injuring” of a horse to cut off closely its main and the hair of its tail;* or of a dress, to do what will render it unfit for further use as such.5

Timber.— Fence rails have been adjudged not to be “timber.” They are “made from timber.”" Yet under the words “timber, wood and trees,” in a statute permitting the removal by owners of obstructions from highways, buildings and parts of buildings are included.

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And see Crim. Law, II, SS 985–990, ? Com. v. Noxon, 121 Mass. 42. And 994, 995.

see Simpson v. Woodward, 5 Kan. 571. Ante, $ 316 and note; Crim. Law, [The English statute 24 & 25 Vict., II, S 995.

ch. 97, 8 52, does not include injuries 28. v. Harris, 11 Iowa, 414

to incorporeal hereditaments, as the 3 Ante, S 447.

right to herbage in the soil of a town 4 Oviatt v. S., 19 Ohio St. 573. (Laus v. Eltringham, 15 Cox, C. C. 22);

• Com. v. Sullivan, 107 Mass. 218. nor to uncultivated roots or plants And see Ashworth v. 8., 63 Ala. 120; growing upon the realty, as mushCom, u Falvey, 108 304.

rooms. Gardner v. Mansbridge, 16 6 McCauley v. S., 43 Tex. 374 Cox, C. C. 281.]

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CHAPTER XXXIL

STATUTORY ENLARGEMENTS OF THE COMMON-LAW CHEAT.

$ 450, 451. Introduction.

452, 453. Unlawful driving of cattle.
454–461. Fraudulent marking and altering of marks
462–464. Violations of estray laws.

$ 450. Elsewhere - False pretenses.— The most prominent extension of the common law of cheats consists of the familiar statutes against the obtaining of goods by false pretenses. They, and various statutes in affinity with them, are considered in other volumes of this series.

$ 451. Here, and how divided.— It would be useless to bring together here all the minor enactments having a possible relation to this subject. We shall simply consider, I. The unlawful driving of cattle; II. The fraudulent marking and altering of the marks of cattle; III. Violations of estray laws.

I. THE UNLAWFUL DRIVING OF CATTLE.

§ 452. Offense.— In Texas, one's driving of another's cattle out of the county, or out of their accustomed range, without the latter's authority or written authority, is, because in a large grazing country specially adapted to defraud the “stock-raisers," made by statute indictable. The offense is complete whenever the full statutory terms are covered by acts of violation, with the requisite criminal intent."

$ 453. Procedure.- One driving of cattle, though of various owners, constitutes one offense only, and all may be charged in one count. The indictment need not describe the range, or

1 Crim. Law, II, SS 164, 166, 409 et (Tex. Ap.), 19 S. W. R. 255; Wells v. seq.; Crim. Pro., II, S 157 et seq. S. (Tex. Ap.), 13 S. W. R. 889.)

2 Rogers v. S., 9 Tex. Ap. 43; Long 4 Smith v. S., 41 Tex. 168; Wills v. v. S., 43 Tex. 467; Smith v. S., 43 Tex. S., supra; [Yoakum v. S., 21 Tex. Ap. 433; Wills v. S., 40 Tex. 69; [Shubert 260, 17 S. W. R. 254; S. v. Swayze, 11 v. S., 20 Tex. Ap. 320.)

Oreg. 357, 3 Pac. R. 574.) Rogers v. S., supra; (Wilson v. S. 5 Long v. S., 43 Tex. 467. And see

Crim. Law, I SS 1060-1064

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allege the distance driven. Perhaps it need not aver the ownership; but, if it does, the averment must be proved. It must negative whatever the general rules of pleading on statutes require;: as, for example, the owner's written consent and the defendant's ownership.*

II. FRAUDULENTLY MARKING AND ALTERING OF THE MARKS OF

CATTLE.

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§ 454. In general — (Common law).— In some localities owners of cattle liable to be mixed with those of other owners have a practice of putting on their own a uniform mark to distinguish them. And the statutes in some of our states author. ize the recording of this mark. Then, if a man effaces from another's cattle the mark, or alters it, or puts on them his own mark, intending, by the help of this device, to convert them to his own use, evidently, as a question of just legal principle, though the author does not call to mind any case directly to the point, he commits either actual or attempted larceny at the common law. And,

§ 455. Statutes.- Further to protect the owners in their property, the statutes of some of our states have made it a distinct offense for one, with a fraudulent intent specified, to mark, or alter the mark, of an animal of another. The statutory terms are not absolutely uniform."

$ 456. Ordinary rules.- The cases under these statutes are governed by the rules of law and procedure ordinarily prevailing in other classes of criminal cases; as,

6 $ 457. Ownership.— The offense may be committed on an animal the ownership whereof is unknown.? Where it is known 1 Darnell v. S., 43 Tex. 147.

Cr. R.), 53 S. W. R. 632. But not in 2 Smith v. S., 43 Tex. 433. And see Arkansas. Houston v. S. (Ark.), 53 Crim. Pro., I, § 4886.

S. W. R. 44.) 3 Crim. Pro., I, SS 631-642.

6 Reynolds v. S., 24 Ga. 427; S. v. 4 Covington v. S., 6 Tex. Ap. 512; King, 84 N. C. 737; S. v. Nichols, 12 Long v. S., 6 Tex. Ap. 642. And see Rich. 672; Murrah v. S., 51 Miss. 675; Wills v. S., 40 Tex. 69.

West v. S., 32 Tex. 651; S. v. Davis, 2 5 Morgan v. 8., 13 Fla. 671; S. v. Ire. 153; [Bradley v. P., 8 Col. 599, 9 Nichols, 12 Rich. 672. As to the Mis- Pac. R. 783; P. v. Swazey, 6 Utah, 93, sissippi statute, see Murrah v. S., 51 21 Pac. R. 409; Terr. v. Blevins (Ariz.), Miss. 652; (Fossett v. S., 11 Tex. Ap. 41 Pac. R. 442; Adams 1. S., 16 Tex. 40. Under the Texas statute value Ap. 162; Pullen v. 8., 11 Tex. Ap. 89.] must be alleged and proven. Melton 7 S. v. Haws, 41 Tex. 161. v. S., 20 Tex. Ap. 202; Diaz v. S. (Tex.

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to the grand jury it should be alleged, and the proofs should sustain the averment. An allegation that the animal belonged to “an estate" was held to be insufficient.? $ 458. “Fraudulently” -(“Wilfully and feloniously”).

-' Under a statute making it punishable “if any person shall fraudulently alter or change the mark or brand of any animal,” an indictment which omitted the word “ fraudulently was held to be insufficient, though in place of it the pleader had inserted the two words “ wilfully and feloniously.” For, said Randall, C. J., “the gist of the offense is the intent to defraud the owner." 3

$ 459. Averment of mark.- According to the one decision which we have, in charging the offense of altering a mark, it is not necessary to say what was the mark before the alteration. But it is enough, for example, to allege that the defendant “ unlawfully, knowingly and wilfully did alter the mark of a certain cow, the property of Martha Benson." !

$ 460, Proving mark.- On this question, probably different results come from different terms of statutes. In Texas, the owner's mark, to be admissible in evidence, must be recorded. It may, in North Carolina, be proved by parol.

§ 461. “Altering" brand.- A brand, it has been held, is “altered” when a new one is put on the animal without defacing the old.? Or the offense may be committed by clipping the hair at the original brand.8

1 Mayes v. S., 33 Tex. 340; (Foster v. 359, 38 Pac. R. 615. But an unre S. (Tex. Ap.), 12 8. W. R. 506; Haw- corded brand is admissible in evikins v. S. (Tex. Cr. R.), 20 S. W. R. dence to identify an animal. Coffelt 830; Reed v. S., 32 Tex. Cr. R. 139, 22 V. S., 19 Tex. Ap. 436; Tittle v. S., S. W. R. 402.]

30 Tex. Ap. 597, 17 S. W. R. 1118; 2 P. v. Hall, 19 Cal. 425.

S. 4 Cardelli, 19 Nev. 319, 10 Pac. 3 Morgan v. S., 13 Fla. 671. And R. 433. And an unrecorded mark compare with Crim. Pro., I, § 613. is admissible in proof of ownership. See also S. v. Roberts, 3 Brev. 139; Dreyer v. S., 11 Tex. Ap. 631; Wyers Rex v. Ogden, 6 Car. & P. 631. v. S., 22 Tex. 258, 2 S. W. R. 722; P.

4 S. v. O'Neal, 7 Ire. 251. [See also v. Bollinger, 71 Cal. 17, 11 Pac. R. S. v. Stelly, 48 La. An. 1478, 21 S. R. 799.) 89; Shiver v. S. (Fla.), 27 S. R. 36.] 6 S. v. King, 84 N. C. 737.

5 Allen v. S., 42 Tex. 517; (Elsner v. 7 Atzroth v. S., 10 Fla. 207. S., 22 Tex. Ap. 687, 3 S. W. R. 474; 8 Slaughter v. S., 7 Tex. Ap. 123. Murray v. Trinidad Nat. Bank, 5 Col.

III. VIOLATIONS OF ESTRAY LAWS.

$ 462. Elsewhere.- Something concerning the larceny of estrays is given in “ Criminal Law.” 1

$ 463. Protection of owners. The protection of owners, in respect of their stray animals, is variously provided for by the statutes in most, or perhaps all, of our states. And,

$ 464. Taking up and using.— In some of our states, the taking up and using of an estray, without complying with the estray laws, is made by statutes a crime.? In Texas, the punishment depends in some degree on the value of the animal. Therefore an indictment on the statute must allege its value.' But it need not set forth its age, color, sex or brands. For an animal to be an estray, the owner must be unknown to the person taking it 1.p;s but it is no objection that he is afterward known, or known to the grand jury finding the indictment.

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Crim. Law, II, SS 876, 882, note. Tex. 515; [Thompson v. S., 37 Tex.

2 S. v. Armontrout, 21 Tex. 472; P. Cr. R. 654, 40 S. W. R. 997; Houser v. 1. Martin, 52 Cal. 201; S. v. Moreland, Scott, 65 Ga. 425; Greene v. S., 79 27 Tex. 726; 8. v. Anderson, 34 Tex. Ind. 537; O'Malley v. MoGinn, 53 611; S. v. Carabin, 33 Tex. 697; S. v. Wis. 353, 10 N. W. R. 515.] Dunham, 34 Tex. 675; S. v. Meschac, 38. v. McCormack, 22 Tex. 297; 30 Tex. 518; Ashcroft v. S., 32 Tex. ante, $ 427. 108; Davis v. 8., 2 Tex. Ap. 162, in 48. v. Crist, 32 Tex. 99. which cases appear various points 5 Roberts v. Barnes, 27 Wis. 422; not stated in the text. As to the (Lowe v. S., 11 Tex. Ap. 253. See suspension of the Texas statute dur. Burton v. S., 21 Tex. Ap. 554, 1 8. W. ing the secession war, see S. v. Spil. R. 450.] lers, 30 Tex. 517; Nichols v. S., 30 6 S. v. Fletcher, 35 Tex. 740.

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