ever quickly done, "to cruelly ill-treat, abuse and torture" them. "As," said Kelly, C. B., "it does not better fit the animal for the use of man or for any other lawful or proper purpose, it is wholly unjustifiable, and is a criminal act which comes within the statute." 1

§ 1109. "Baiting." It has been held that, if rabbits are put into a field of three or four acres from which they cannot escape, and two dogs are set upon them in a match to see which will kill the most, this is not a "baiting" of the rabbits. It is a hunting of them. The term "baiting," said Cockburn, C. J., "is usually applied when an animal is tied to a stake or confined so that it cannot escape.'

992

§ 1110. "Kill" — (“ Cruelly "-" Needlessly ").— The mere killing of an animal was never made an offense. Some of the statutes make punishable the killing of it "cruelly;" others, "needlessly; " each of which expressions requires something more.

§ 1111. "Cockfighting "—is a form of evil sport always deemed in the law reprehensible. And it is cruelty to the creature, within some of the statutes."

7

§1112. Justification.-These statutes are construed in accord with their spirit and reasons; so as, following the obvious legislative intent, not to interfere with the proper use of the animal, and the higher claims of human beings to protection. "Cruelty

1 Murphy v. Manning, 2 Ex. D. 307, 313; [S. v. Porter, 112 N. C. 887, 16 S. E. R. 915.]

under a statute forbidding any one having any animal in his custody to knowingly permit it to be subjected

2 Pitts v. Millar, Law R. 9 Q. B. 380, to unnecessary torture, suffering or 382.

3 Grise v. S., 37 Ark. 456; S. v. Bogardus, 4 Mo. Ap. 215; [Hodge v. S., 79 Tenn. 528, 47 Am. R. 307; Tinsley v. S. (Tex. Ap.), 22 S. W. R. 39.]

4 And see Jones v. S., 9 Tex. Ap. 178; Colam v. Hall, Law R. 6 Q. B. 206.

cruelty. Com. v. Turner, 145 Mass. 296, 14 N. E. R. 130. But in Pennsyl vania it is held that shooting pigeons by a gun club, where they are set loose from a trap, and when wounded immediately killed, is not to wantonly or cruelly ill-treat. Com. v. Lewis, 140 Pa. St. 261, 21 Atl. R.

5 Ante, § 859; Com. v. Tilton, 8 Met. 396, 11 L. R. A. 522.]

232.

Budge v. Parsons, 3 B. & S. 382; Clark v. Hague, 2 Ellis & E. 281, 8 Cox, C. C. 324; Morley v. Greenhalgh, 3 B. & S. 374. [In Massachusetts it is held that to let loose a captive fox to be hunted by dogs is punishable

7 Ante, SS 1019, 1020, and places there referred to.

8 Murphy v. Manning, 2 Ex. D. 307, 314; Walker v. Special Sessions, 4 Hun, 441; Cornelius v. Grant, 7 Scotch Sess. Cas. (4th ser.) Just. 13.

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.

5

§ 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. 2 S. 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.

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. 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.

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.

374.

P. v. Tinsdale, 10 Abb. Pr. (N. S.)

5 S. v. Comfort, 22 Minn. 271. And see S. v. Shenton, 22 Minn. 311; [S. v. Haley, 52 Mo. Ap. 520. In Massachusetts it was held sufficient to allege that defendant "did cruelly overdrive a certain horse," etc. Com. v. Flannigan, 137 Mass. 560.] 6 Ante, § 446.

Ante, § 1110.

8 In an excellent little manual of

§ 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.3

§ 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."

§ 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.

Crim. Pro. I. §§ 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. L. 100, 51 Am. R. 344.]

Com. v. Waite, 11 Allen, 264, [87 Am. D. 711.]

Municipal by-laws - sometimes accomplish the same object. P. v. Mulholland, 82 N. Y. 324, [37 Am. R. 568.] And see Chicago v. Bartee, 100 Ill. 57; [Shivers v. Newton, supra; P. v. Cipperly, 37 Hun, 319, reversed in 101 N. Y. 634, 4 N. E. R. 107.]

4 Com. v. Nichols, 10 Allen, 199; Com. v. Farren, 9 Allen, 489; Com. v.