Some violation of duty must be dis-
Hence, -

§ 830. Violation of Duty. tinctly shown in allegation. Non-payment of Money. - Where, by law, a constable who has collected money on an execution from a justice of the peace is required to pay it either to the magistrate or the party, an indictment averring merely that he did not pay it to the party is inadequate.2 § 831. Same of Money received for Fines. - An indictment for not paying over money received on account of fines for the use of common schools need not state from whom it was received.3 § 832. Not returning Execution. For not returning an execution, the indictment against a constable must state, at least, its substance; "in order," it was said, "that the court might see whether it was, on its face, such an execution as the defendant was bound to execute and return." 4

§ 833. Averring Malice (Defendant's Knowledge). — Though the general form of the indictment, before described,5 charges that the defendant acted "unlawfully and contemptuously," these particular words are not indispensable, nor are they always the most appropriate. Therefore if the statutory term is "wilful," it alone will be sufficient in allegation. And even less of evil in the intent need be averred under some of the statutes.7 On the other hand, under an Indiana enactment, an indictment against a justice of the peace for corruptly rendering an unlawful judgment must allege, that he knew his decision to be contrary to law. And,

§ 834. Continued. In general, corruption, in some form of words, ought to be averred. It is believed to be always necessary in indictments at the common law. It is commonly, if not always, so under statutes. And the form of the averment will ordinarily be determined by the statutory terms; as, if they are "unreasonable, corrupt, or wilfully oppressive," the like should be in the indictment.10

The State v. Shields, 8 Blackf. 151. 2 The State v. Longley, 10 Ind. 482. Alexander v. The State, 9 Ind. 337; The State v. McCormack, 2 Ind. 305.

4 The State v. Smith, 5 Black f. 327. 6 Ante, § 822.

6 Rex v. Hollond, 5 T. R. 607, 623. 7 Mahar . The State, 28 Ark. 207. The State v. Ross, 4 Ind. 541. There are several other Indiana deci

sions on points like this; as, Vanhook v. The State, 5 Blackf. 450; The State v. Odell, 8 Blackf. 396; The State v. Hunter, 8 Blackf. 212; Stewart v. The State, 4 Blackf. 171; The State v. Boyles, 7 Blackf. 90.

9 Crim. Law, I. § 299, 460, 462; II. § 972, 976; ante, § 822; The State v. Buxton, 2 Swan, Tenn. 57.

10 The State v. Small, 1 Fairf. 109.

§ 835. Justice of Peace as to Estray. In an indictment against a justice of the peace, in Illinois, for malfeasance in respect of some estray animals, the words "corruptly caused" were held sufficiently to aver the evil intent.1

§ 836. Evidence of Malice The question of malice is for the jury.2 A sufficient presumption of it may arise from a wrong act intentionally done.

(Judge or Jury - Presumption).

Mistake of Law. A mistake of law, especially in a judicial. officer, is inadequate proof of corruption.*

CHAPTER XLVI.

MALICIOUS MISCHIEF.1

§837. Introduction.

838-844. Indictment generally and at Common Law.

845, 846. Specially of Indictment on Statutes.

847-850. The Evidence.

§ 837. Divisions of Subject. How the subject of Malicious Mischief is distributed among the several volumes of this series of works is stated in "Criminal Law." 2

How Chapter divided. In this chapter we shall consider, I. The Indictment generally and at the Common Law; II. Specially of the Indictment on Statutes; III. The Evidence.

I. The Indictment generally and at the Common Law.

§ 838. Form of Indictment. The indictment, at the common law, alleges the malice of the defendant, describes the property, states who is the owner; and, with the particularity required in all indictments, for whatever offence, sets out the special acts which constituted the mischief in the individual instance.3

§ 839. Varying with Views of Law. At different places in "Criminal Law" and "Statutory Crimes," it is explained that the views of our tribunals are not entirely uniform as to what are the essential elements of either the common-law or the statu

tory malicious mischief. Hence, in some particulars, what would be accepted as a good indictment in one State might not be so in another.

1 For the law of this offence, see Crim. Law, II. § 983 et seq. And, for law and procedure, see Stat. Crimes, § 430-449.

2 Crim. Law, II. § 983.

8 See, for forms, 2 Chit. Crim. Law, 23; 2 Stark Crim. Pl. 2d ed. 576 et seq.; People v. Moody, 5 Parker C. C. 568;

The State v. Briggs, 1 Aikens, 226; Bur-
gess v. The State, 44 Ala. 190, 192; The
State v. Simpson, 2 Hawks, 460; The
State v. Scott, 2 Dev. & Bat. 35.

4 See, for example, Crim. Law, I. § 569, 570, 577; II. § 984, 985; Stat. Crimes, § 430, 433-436.

§ 840. Value.- Principles already developed1 disclose, that, whether the indictment is at the common law or on a statute, it need not allege the value of the property injured or destroyed;2 unless such value influences the punishment, in which case it must. The rules in larceny determine the form of the allegation; as, if it gives only the collective value of several enumerated things, this, though not judicious, will not be ill should the proofs sustain the entire averment.5

§ 841. Description of Injury. The indictment must set forth the injury inflicted with such minuteness of description as, within rules stated in the first volume,6 will identify the transaction and sufficiently inform the defendant of the nature and extent of the accusation. And, in this, there is no difference between indict ments drawn on the common law and on the statutes.8 Illustrations, showing the manner of alleging the injury within this doctrine, appear in "Statutory Crimes."9

§ 842. Allegation of Malice. The indictment ought to allege the malice which, by the law of the offence, is an element therein. This, in general, is malice against the owner.10 It is quite common to employ for this purpose the adverbial form of the word, "maliciously," and to connect it with "mischievously " and other adverbs of the like sort. And some of these may assist in pointing the malice to the owner." But, aside from what may be required to cover the terms of a statute, it is believed that no one form is universally exclusive of all others.12

1 Vol. I. § 488 b, 540, 541, 567; ante, Hayworth v. The State, 14 Ind. 590, § 713. The State v. Merrill, 3 Blackf. 346; The State v. Langford, 3 Hawks, 381; The State v. Aydelott, 7 Blackf. 157; Hotchkish v. Tuttle, 1 Root, 438; The State v. Derossett, 19 Misso. 383; Read v. The State, 1 Ind. 511; Shell v. The State, 6 Humph. 283.

2 The State v. Simpson, 2 Hawks, 460; Caldwell . The State, 49 Ala. 34; The State v. Garner, 8 Port. 447; Commonwealth v. Soule, 2 Met. 21. And see The State v. Aydelott, 7 Blackf. 157; The State v. Blackwell, 3 Ind. 529; Manes v. The State, 20 Texas, 38; Nutt v. The State, 19 Texas, 340.

3 The State v. Shadley, 16 Ind. 230; Nicholson v. The State, 8 Texas Ap. 31; The State v. Heath, 41 Texas, 426; Reg. v. Thoman, 12 Cox C. C. 54; The State v. Garner, 8 Port. 447.

Ante, § 713-716.

5 Commonwealth v. Falvey, 108 Mass. 804, 307.

6 Vol. I. § 509, 519, 520, 526, 530, 566. 7 The State v. Jackson, 7 Ind. 270;

Vol. I. § 610, 611.

9 Stat. Crimes, § 446-448.

10 Crim. Law, I. § 595; and places cited ante, § 839; Stat. Crimes, § 433-437; The State v. Hill, 79 N. C. 656.

11 See the cases cited ante, § 838.

12 The State v. Jackson, 11 Ire. 329. Nash, J. observed in this case: "It is of the essence of the crime charged against the defendant that it was perpetrated from ill-will against the owner of the property destroyed. It is necessary,

§ 843. Ownership. For the same reason that an allegation of ownership is required in larceny,' it is, on principle, required in malicious mischief, both at the common law and under the statutes; 2 and it should be in the same form. Most of the cases so hold. But under special circumstances, or statutory modifications of common-law rules, a few of the adjudications permit, perhaps justly, this averment to be omitted.1

§ 814. Offences whereof Malicious Mischief is one Element. There are various offences consisting in part of the element of malicious mischief and in parts of other elements of wrong. The form of the indictment will, like the offence itself, consist of a blending of different things into one. Herein the emergencies of the particular case will be the pleader's guide. One illustration is where the mischief is committed by the discharge of guns to the terror of the people in a dwelling-house; another, where the windows of an inhabited building are broken in the night, with the like consequence; 6 another, where the house is thus fully or in part torn down."

therefore, that the indictment should either directly charge this malice towards the owner, or so describe the offence that the court may see that the charge is sufficiently explicit to support itself. The indictment in this case does not charge the crime to have been perpetrated from malice against the owner. And in the cases of The State v. Simpson, 2 Hawks. 460, and The State v. Scott, 2 Dev. & Bat. 35, the court decided that it was not necessary so to lay the offence, because the indictment was according to the precedents. But in both those cases the crime was sufficiently charged with out those words. The charge in Scott's case was, unlawfully, wickedly, maliciously, and mischievously,' &c.; in Simpson's, unlawfully, wickedly, maliciously, and mischievously.' In each of those cases the generic term, designating the crime, is used; and, therefore, we presume that the precedents did not call for the express charge of malice against the owner, because the description contained in the indictment necessarily embraced it. In the case before us, the word 'mischievously is omitted, and the description is legally incomplete. If the indictment had gone on and charged malice against

the owner, the charge would have been
sufficiently explicit to support itself. An
indictment for malicious mischief must
either expressly charge malice against
the owner, or fully otherwise describe
the offence." p. 331. The indictment
for the malicious disfigurement of a horse,
contrary to the Tennessee statute, must
aver that the act was done maliciously.
Boyd v. The State, 2 Humph. 39. See
The State v. Hambleton, 22 Misso. 452.
1 Ante, § 718 et seq.
2 Vol. I. § 610, 611.

8 Rex v. Patrick, 2 East P. C. 1059; The State v. Jackson, 7 Ind. 270; Haworth v. The State, Peck, 89; The State v. Faucett, 15 Texas, 584; Davis v. Commonwealth, 6 Cascy, Pa. 421, 424; Rex v. Woodward, 2 East P. C. 653; The State v. Hill, 79 N. C. 656; Morningstar v. The State, 52 Ala. 405; The State v. Brant, 14 Iowa, 180; Ritter v. The State, 83 Texas, 608; The State v. Mason, 13 Ire. 341; Reg. v. Jones, 1 Car. & K. 181.

4 Benson v. The State, 1 Texas Ap. 6; Owens v. The State, 52 Ala. 400; The State v. Brocker, 32 Texas, 611.

The State v. Langford, 3 Hawks, 381. 6 The State v. Batchelder, 5 N. H. 549. 7 The State v. Wilson, 3 Misso. 125.