1 in the statute," said the Lord Justice Clerk in a Scotch case, "means cruelty without reason, cruelty in making one of the lower animals suffer without any reasonable object or to an unreasonable extent." For example, blows inflicted on a horse in training, when reasonable and not prompted by evil passion;2 a necessary "surgical operation, occasioning the most intense suffering" to the animal; the driving of "a horse at a rate of speed most distressing to the brute, when the object is to save human life; " the severe wounding of a dog to prevent a boy's being torn to pieces by him,—are specimens of what is permissible, though not in terms excepted out of the statute. § 1113. Evil intent-(Intoxication).- There must be such malice or other evil intent as the statute by its terms or interpretation requires. But one is presumed to intend the natural and necessary consequences of his act. Nor is it an excuse for him that he was drunk." II. THE PROCEDURE. 8 § 1114. The indictment—should, after the usual manner of indictments on statutes, cover the statutory terms. Further as to which § 1115. "Beat."- Under the statutory word "beat,” as in the expression "cruelly beat any horse," it is sufficient to say, in allegation, that the defendant "did beat" the animal, not specifying more minutely the beating. For the idea is simple, 1 Cornelius v. Grant, supra, at p. 14. 2S. v. Avery, 44 N. H. 392; Com. v. Lufkin, 7 Allen, 579. 10 8 Crim. Pro., I, § 593 et seq. 9 Com. v. Brooks, 9 Gray, 299; S. v. Comfort, 22 Minn. 271; Benson v. S., 3 Com. v. Lufkin, supra, at p. 582, 1 Tex. Ap. 6; Com. v. Brigham, 108 opinion by Hoar, J. 4 Cornelius v. Grant, supra. 5 Cases cited to the last section; S. v. Brocker, 32 Tex. 611; Rembert v. S., 56 Miss. 280; S. v. Rector, 34 Tex. 565; [Grise v. S., 37 Ark. 456; McKinne v. S., 81 Ga. 164, 9 S. E. R. 1091; Stephens v. S., 65 Miss. 329, 8 S. R. 458; S. v. Soc. P. C. A., 47 N. J. L. 237.] 6 Com. v. Wood, 111 Mass. 408; [S. v. Hackfath, 20 Mo. Ap. 614.] 7 S. v. Avery, 44 N. H. 392; [Com. v. Curry, 150 Mass. 509, 23 N. E. R. 212.] Mass. 457; Com. v. Thornton, 113 Mass. 457: Com. v. Whitman, 118 Mass. 458; Rembert v. S., 56 Miss. 280; S. v. Rector, 34 Tex. 565; [Com. v. Porter, 164 Mass. 516, 42 N. E. R. 97; S. v. Allison, 90 N. C. 733; Rountree v. S., 10 Tex. Ap. 110; Rivers v. S., 10 Tex. Ap. 170; Burgman v. S. (Tex. Cr. R.), 34 S. W. R. 111; S. v. Gould. 26 W. Va. 258: S. v. Clark, 86 Me. 194, 29 Atl. R. 984.] 10 Com. v. McClellan, 101 Mass. 34; Com. v. Lufkin, 7 Allen, 579; [Com. v. Edmunds, 162 Mass. 517, 39 N. E. R. 183.] and this word alone adequately particularizes the act and the instance.1 But § 1116. "Torture," in the statute, is less definite; and the indictment must state the method of torture and its effects; so far, at least, as to enable the court to see that it was of the sort and degree which the statute is construed to forbid. But the omission of this particular is a formal defect, which, under the enactments as to procedure of some of our states, can be objected to only at an early stage of the cause.3 Again,— § 1117. "Overload"-appears to have been deemed of the same class, requiring expansions of the averment into the particulars. And, in reason, simply to say that the defendant "overloaded" a designated animal is not the sort of precise and full charge to which he ought to be required to answer. And § 1118. "Overdrive,” — while more definite, is perhaps not sufficiently so to take it quite out of the same rule. But under the Minnesota statute it was adjudged adequate to say that, at a specified time and place, the defendant "did cruelly, wilfully, and with force and arms, overdrive two horses, by reason of which said overdriving the said two horses were tortured and tormented." Here, it is perceived, there is greater precision than simply to charge that the defendant, at the time and place, "did overdrive" the horses. § 1119. "Kill."— We have seen that, in malicious mischief, "kill," without specification of the manner, will suffice. But, in this offense, it is otherwise of the law itself." And where the terms of the statute are "cruelly kill," some specification of the cruelty would appear, in reason, to be required; though the precise question has probably not been adjudicated.R 1 Crim. Pro., I, §§ 509, 514, 517, 520, 556-584, 619, 624, 625; [S. v. Goss, 74 Mo. 592.] 2 Id., § 629; ante, § 447; S. v. Pugh, 15 Mo. 509; Com. v. Whitman, 118 Mass. 458; Com. v. Thornton, 113 Mass. 457; [S. v. Bruner, 111 Ind. 98, 12 N. E. R. 103; S. v. Giles, 125 Ind. 124, 25 N. E. R. 159; S. v. Watkins, 101 N. C. 702, 8 S. E. R. 346.] 3 Com. v. Brigham, 108 Mass. 457. § 1120. The ownership-of the animal, not being important in the law of the offense, need not be averred. Yet it is descriptive of the particular creature; so that, if alleged, it must be proved as laid to avoid a variance.' § 1121. One offense or more. - How many offenses are constituted by a transaction contrary to these statutes may be determined by analogies from other crimes. If a man overdrives or overloads two horses harnessed together, the wrong is evidently but one. Yet, if in the one transaction he beats the two severally, the case will, in reason, be governed by analogies from assault and battery, and from homicide, into which we need not enter.5 § 1122. Injunction is a remedy in equity, not pertaining to crime. One, therefore, cannot have an injunction against the agent of a society for preventing cruelty to animals, to restrain him from interfering in the applicant's business." "Forms of Complaints," issued by the "Massachusetts Society for the Prevention of Cruelty to Animals," this question is treated as follows: "It has been held, in numerous cases, that in proceedings under a statute punishing the wilful and malicious killing of the beast of another person, it is unnecessary to set forth in the complaint the mode of the killing, and that the statutory words alone are sufficient. Com. v. Sowle, 9 Gray, 304, 69 Am. D. 289. The case is widely different under a statute prohibiting the cruel killing of any animal. In the one case, the injury resulting to the owner of the animal killed is that which the law chiefly regards, viewed in connection with the evil mind of the offender; and that injury is properly set forth in the very words of the statute, the manner in which the offender performed the prohibited act being immaterial. In the other case, the manner in which the act was done is all-important, the owner's 727 loss being entirely immaterial, and it is essential that such particulars of the defendant's act be averred that it will appear from the averments of the complaint that the act performed constituted a cruel killing." See Collier v. S., 4 Tex. Ap. 12; Darnell v. S., 6 Tex. Ap. 482; Reid v. S., 8 Tex. Ap. 430. 1 Ante, § 1105. 2 S. v. Brocker, 32 Tex. 611; Benson v. S., 1 Tex. Ap. 6. 3 Crim. Pro., I, § 488b; Collier v. S., 4 Tex. Ap. 12; Darnell v. S., 6 Tex. Ap. 482; Rose v. S., 1 Tex. Ap. 400. 4 P. v. Tinsdale, 10 Abb. Pr. (N. S.) 374; S. v. Comfort, 22 Minn. 271. And see Rex v. Mogg, 4 Car. & P. 364; S. v. Avery, 44 N. H. 392; Com. v. O'Brien, 107 Mass. 208. And consult Crim. Law and Crim. Pro. 6 Crim. Pro. I. SS 1412-1417. 7 Davis v. American Society, etc., 75 N. Y. 362, affirming 16 Abb. Pr. (N. S.) 73. § 1123. What for chapter and how divided.-Having considered most of those offenses which are exclusively or essentially statutory, we shall briefly call to mind the leading doctrines pertaining to, I. The selling of adulterated milk; II. Statutes for the protection of fish; III. Statutes for the preservation of game; IV. Cattle at large. I. THE SELLING OF ADULTERATED MILK. § 1124. In general.- The putting off, upon the community, of unwholesome food is indictable at the common law. But, without reference to the unwholesomeness, wherein the common-law offense consists, statutes, in some of our states, have made it punishable to sell any sort of adulterated milk." And these statutes are within the legislative power. Their terms differ; but, § 1125. Knowledge of adulteration. In the absence of special words in the statute it is not an affirmative element in the offense that the seller knew of the adulteration, and it need not be alleged or proved against him. But some of the statutes re 1 Crim. Law, I, §§ 484, 491, 558. 2 Com. v. Smith, 103 Mass. 444; Com. v. Flannelly, 15 Gray, 195; Phillips v. Meade, 75 Ill. 334; Bainbridge v. S., 30 Ohio St. 264; [Com. v. Rennerson, 143 Mass. 418, 9 N. E. R. 761; Com. v. Gordon, 158 Mass. 8, 33 N. E. R. 709; Shivers v. Newton, 45 N. J. L. 469; P. v. Harris, 123 N. Y. 70, 23 N. E. R. 317; S. v. Smyth, 14 R. I. 100, 51 Am. R. 344.] quire such knowledge, and the indictment under them must aver and the evidence prove it. Beyond this, § 1126. Mistake of the fact.- One or two of our courts have holden that, where the statute is silent concerning the seller's knowledge, if, however honestly and after whatever precautions, he is misled to believe the milk to be pure, he is punishable should it turn out to be adulterated. Yet, by the just doctrine, an unavoidable mistake of the fact, by one whose purpose it is to obey the law, relieves him from legal guilt, the same as from moral, precisely as in other ciminal cases. question is sufficiently examined in other connections.3 The § 1127. Indictment and evidence.- Some questions have arisen relating to the indictment and evidence; as to which, a mere reference to these cases will suffice.* Smith, 103 Mass. 444; S. v. Smith, 10 R. L. 258. This is probably the correct doctrine; though, in analogous cases, various statutes which are silent as to the criminal intent are construed to require it as an affirmative element in the offense; when, of course, it must be alleged and proved. Crim. Pro., I, § 522. Thus, Alum in bread.- Almost precisely in accordance with the forms of our leading statutes against selling adulterated milk, the English statute of 6 & 7 Will. 4, ch. 37, made it an offense for a "baker or other person" making "bread for sale," to "use any mixture," etc., and provided for the publication of the names of convicted offenders. And it was held that on a simple allegation, in the terms of the statute, of mixing alum in bread, and proof of the fact and no affirmative evidence of guilty knowledge, a conviction could not be sustained. Said Hannan, J.: "The provisions of the act cast great responsibility on a master baker; but I cannot think it to have been the intention of the legislature that he should be liable to a penalty for anything that occurs by accident. If this were so, the master might be punished when some foreign ingre dient had fallen into the flour without the knowledge of either himself or his servant; and I am the more inclined to think that the legislature had not this intention, because the name of the master who has been convicted under the act is to be made public in order that persons may be warned against dealing at a shop where something wrong has been done, either by the servant or his employer." Gore v. James, Law R. 7 Q. B. 135, 138. Yet the just doctrine as to mistaking the fact, explained in the next section of the text, would seem to satisfy this reasoning. 1 Com. v. Smith (the Mass. case), supra; Bainbridge v. S., 30 Ohio St. 264; Phillips v. Meade, 75 Ill. 334; Com. v. Flannelly, 15 Gray, 195; [Com. v. Evans, 132 Mass. 11; Com. v. Warren, 160 Mass. 533, 36 N. E. R. 308; P. v. Schaeffer, 41 Hun, 23; P. v. Cipperly, supra; P. v. West, 106 N. Y. 293, 12 N. E. R. 610; P. v. Kibler, 106 N. Y. 321, 12 N. E. R. 795; P. v. Eddy, 59 Hun, 615, 12 N. Y. Supp. 628.] 2 Crim. Law, I, § 303a, note, par. 22. 3 Ib., SS 301-310 and the long note at § 303a; ante, §§ 596a, 596b, 631a632a, 663-665, 729, 819, 825, 1022. 4 Com. v. Luscomb, 130 Mass. 42; |