or when acting as or in aid of an officer of justice, it is not unlawful to carry an army pistol to kill wild hogs.1 To borrow a pistol and join in a chase after a bear, returning the weapon to its owner, after the chase is not within the statute.2 § 177. - Carrying Weapons into Church, School-room, Ball-room, etc.— The Texas statute as to carrying weapons into a church, school-room, ballroom, etc., is to protect the people there assembled and not the edifice. Therefore to carry a weapon into a ball-room when people are not assembled there is not an offense.3 § 178. Trespass not Indictable. - A mere trespass on private property is not Indictable, although the entry is unlawful. An invasion of property, real or personal, without a disturbance of the peace, is not an indictable offense. $ 179. Forcible Trespass Indictable. To constitute forcible trespass, there must be a demonstration of force, as with arms or a multitude of attendants, so as to create or make imminent a breach of the peace.' In State v. King, the following case was held not to amount to the offense. The State introduced one Wilson, the prosecutor, as a witness, who testified that sometime during the year 1875 the defendant came into his store, in the County of Stokes, and desired to purchase of him a bolt of domestic. That he at first declined to sell, telling the defendant that his wife desired the cloth for her own use. The defendant insisted on buying it, promising the witness that he would pay him the money and he could buy other goods of the kind by the time his wife would need it. The witness then measured off the cloth and laid it on the counter, telling the defendant that it came to $3.55. The defendant picked it up, carried it to his horse, which was hitched in the road about five paces from the store, and laid it across the saddle. He then returned to the store, walked up to the counter, felt in his pocket and taking out some money (witness could not say how much), told the witness that he had an order on him from one Wm. Edwards which he must take. The witness replied: "You promised me the cash, I can't take an order from Edwards; that the order was just, but he could not accept it; that he must have the money." The defendant then turned and walked out towards his horse. The witness followed, and as the defendant was about mounting, told him not to carry off his goods until he had paid for them. The defendant then started to ride off, the witness being present, and throwing down the order, looked back at the witness, and said with an oath: "I have got the goods, help yourself if you can." No other person was present. The defendant made no other demonstration of force. So, where one having a right to enter on land in the possession of a tenant at sufferance, went with four others and commenced building on the land out 1 Wilson v. State, 33 Ark. 557 (1878). 2 Morehead v. State, 5 Lea, 348 (1880). 3 Rainey v. State, 8 Tex. (App.) 62 (1880). 4 State v. Burroughs, 7 N. J. (L.) 426 (1802); State v. Wheeler, 3 Vt. 344 (1830). 5 Temple v. State, 7 Baxt. 109 (1874). State v. Wheeler, 3 Vt. 347 (1830); State v. Farnsworth, 10 Yerg. 261 (1837); State v. Flowers, 2 Murph. (N. C.) 225 (1813); State v. Phipps, 10 Ired. (L.) 17 (1848); State v. Johnson, 1 Dev. & B. 324 (1835); Com. v. 7 State v. Lloyd, 85 N. C. 573 (1881); State v. Laney, 87 N. C. 537 (1882); Kirkpatrick v. People, 5 Denio, 278 (1848). 8 74 N. C. 177 (1876). present case and those before referred to, because the word "mischievously" is used in this indictment, but that does not alter the rule. It was so held in State v. Wheeler, where the word mischievously was used in the indictment, and yet the killing of a beast of another under such circumstances was held to be only a civil injury, and not indictable. I think the definition of the offense as stated above, is quite as comprehensive as the cases warrant, and more so than some of them would sustain. "The plaintiff in error has not committed an offense coming within these rules, and the judgment should be reversed." So cutting and girdling fruit trees is not indictable at common law;2 or cutting down a live tree; or destroying the saddle bags of another; or killing another's beasts.5 § 187. Wounding Animal not Indictable. - In State v. Beckman, it was neld that maiming or wounding an animal without killing it was not indictable. Said the Chief Justice, delivering the opinion: "The defendant was convicted in the Somerset Oyer and Terminer, of malicious mischief. The indictment charges that the defendant unlawfully, willfully and maliciously, did wound one cow of the value of $50 of the goods and chattels of J. C. F. The question reserved for the consideration of this court, is whether the act charged in the indictment constitutes an indictable offense in this State. It is clearly not an offense within the statute. The act for the punishment of crimes, declares it to be a misdemeanor, willfully and unlawfully and maliciously to kill or destroy any horse, mare or gelding, or any bull, ox, steer, bullock, cow, heifer or calf, or any sheep or lamb. The statute extends only to the killing or destroying of certain and specified domestic animals. It does not include all domestic animals (neither goats, pigs or poultry being enumerated) nor does it extend to the wounding or maiming of any. If the act of wounding a cow constitutes a crime, it must be an offense at common law. Is it so? "The general rule is, that no injuries of a private nature, unless they some way concern the king, or affect the public, are indictable at common law.8 "Blackstone regards the crime of malicious mischief as a purely statutory offense. Malicious mischief, or damage, is the next species of injury to private property which the law considers as a public crime. This is such as is done, not animo furandi or with an intent of gaining by another's loss, which is some, though a weak excuse, but either out of a spirit of wanton cruelty or black and diabolical revenge in which it bears a near relation to the crime of arson; for as that affects the habitation, so this does the other property of individuals. And, therefore, any damage arising from this mischievous disposition, though only a trespass at common law, is now, by a multitude of statutes made penal in the highest degree. "Among those offenses made penal by statute, though only trespasses at common law, he enumerates the destroying of sea or river banks, the burning or destroying of stacks or ricks of hay or grain, and the killing of horses, sheep, 1 3 Vt. 344. 2 Brown's Case, 3 Me. 177 (1824). 3 Com. v. Powell, 8 Leigh, 719 (1837). 4 Shell v. State, 6 Humph. 283 (1845). State v. Wheeler, 3 Vt. 344 (1830). 27 N. J. L. 124 (1850). Nix. Dig. 173, sec. 70. 8 Hawk. 210, b. 2, ch. 25, sec. 4; Rex v. Storr, 3 Burr. 1698; Rex v. Atkins, 3 Burr. 1706; Rex v. Wheatly, 2 Burr. 1125; Bac. Ab. "Indictment " E; Com. Dig. "Indictment" E.; State v. Burroughs, 2 Halst. 426 4 Bla. Com. 244. or cattle, the very offenses specified in our statute against malicious mischief. * "The distinction, remarks Mr. Christian, between public crimes and private injuries seems certainly to be created by positive laws, and is referable only to civil institutions. * To destroy another's property willfully, without making the owner a compensation, is in all cases, a worse crime in reason than theft; because the individual deprived of his property suffered precisely the same injury, and the public loses the benefit of that property, which contributes to the support of no one; and he who does the injury has not the temptation of him who steals to supply his wants. In the case of those actions which are only civil injuries, and to which no legal punishment is annexed, the law has supposed that retribution will be sufficient to deter from the commission of them. But the willful and malicious destruction of another's property by fire, in many cases is punished with death. So, also, is the malicious killing and maiming of another's cattle; yet these detestable and diabolical acts were not crimes by the common law of England; but experience discovered the necessity of rendering them subject to public and severe punishment. Yet, to set fire to a field of standing corn is still only a private injury, though this is an act which strikes at the very being of society; but the Legislature have not yet found it necessary to repress it by the terror of penal laws.1 "In Ranger's Case2 it was held that no indictment lies at common law for unlaw. fully, with force and arms, maiming a horse, and that the fact itself was only a trespass independent of the statute. It was so held, also, as late as 1840, în Regina v. Wallace. A strong confirmation of this position is found in the fact, that among the very numerous cases in the English books of indictments for maiming, wounding and killing cattle, not a single conviction or precedent of an indictment can be found for the offense at common law, independent of the statute.5 "It has been ingeniously suggested that this absence of precedent and authority may be accounted for on the theory, that the statute was intended as a mere increase of the penalties of the crime at common law. And that the statutes were so ancient, so mumerous, and the penalties so specific, certain and severe, that the statutes were resorted to, and the common law lost sight of." "This explanation can scarcely be regarded as satisfactory. It is hardly con ceivable that an offense at common law so common as the killing, wounding and maiming, and so serious as even to demand a multitude of statutes for its suppression should not have been so much as mentioned by Coke, or Hale, or Hawkins. That its existence should have been denied by Blackstone, and by Christian, and that the Court of Queen's Bench, so late as the close of the last century,' should have held it to be not an offense at common law. Nor does it seem at all consistent with probability, that in the numerous reported cases, when the offender has escaped punishment on the ground that the offense charged was not without the terms of the statute, that resort should not have been made to the common law to enforce punishment, if in fact the commonlaw offense existed. 1 Bla. Com. 45. 22 East's P. C., ch. 22, sec. 16. 3 cited 2 Russ. on Cr. 497, ch. 43. 41 Crawford & Dix 403. Hawk. P. C., b. 1 ch. 46; 3 Chitty's 5 Cr. L. 1087; Archb. Cr. Pl. 182; Crown Cir. State v. Briggs, 1 Aiken, 226 Loomis r. East's P. C., ch. 22, sec. 16. "Nor is it at all reconcilable with the theory that the statute of 22 and 23 Car. II., which makes the killing of cattle in the night time a felony, subjects the persons guilty of wounding cattle in the night time to triple damages, only in a civil action at the suit of the party grieved.1 2 any "In Wharton's Criminal Law, it is said that malicious mischief in this country as a common-law offense, has received a far more extended interpretation than has been attached to it in England, and the learned author has defined the commonlaw offense of malicious mischief, as received in this country, to be malicious or mischievous injury, either to the rights of another, or to those of the public in general.' This, probably, is law within the Commonwealth of Pennsylvania, where the crime of malicious mischief has received a very wide interpretation. But the proposition that any malicious or mischievous injury to the rights of an individual, is an indictable offense at the common law, is unwarranted either by principle or authority. It would render every willful trespass an indictable offense. "In Respublica v. Fancher, it was held by the Supreme Court of Pennsylvania, that an indictment would lie at the common law, for maliciously, willfully and wickedly killing a horse. The Attorney-General in that case admitted that he had not been able to discover any instance of an indictment at common law for killing an animal, or, indeed, for any other species of malicious mischief; that, in all the precedents, as well ancient as modern, he had found the charge laid contra forma statuti, except in the case of an information for killing a dog;* upon which, however, he declared he did mean to rely. The court, however, appears to have relied upon it, and no other authority is cited in support of the decision. It is remarkable that the case cited is not to be found. Neither the authority itself, nor the reason assigned, commend the case to our favorable regard. This case is approved in Commonwealth v. Taylor, and appears to be the settled law of that Commonwealth. 6 "In People v. Smith, it was held that an indictment lies for maliciously, wickedly, and willfully killing a cow, the property of another. The indictment was manifestly framed upon the authority of Respublica v. Fancher,' and is supported mainly by the authority of that case. The case is sustained on the broad principle, that malicious mischief to private property without or expectation of gain is indictable at common law as a misdemeanor. The same principle is approved and adopted in Loomis v. Edgerton.8 In Kilpatrick v. People, which was an indictment for unlawfully, willfully, and maliciously destroying the windows of a dwelling house, it was held, upon a review of all the cases, that a mere act of trespass does not become indictable if committed maliciously and without claim of right or motive of gain. The case is distinguished, it is true, from the preceding cases, upon the ground that the act was not charged to have been committed secretly, and that it lacked the ingredient of cruelty. But the broad principle upon which the previous cases were decided was utterly repudiated. I know of no principle, says Justice Beardsley, in delivering the unanimous opinion of the court, in which the act described in this indictment can be held to be a public crime. A great outrage it certainly was, and, therefore, very fit to be 1 3 Stat. at Large, 354 secs. 1, 5. 2 (ed. 1857) sec. 2002. 3 1 Dall. 335. Cited from 12 Mod. 337. 5 Binn. 277. 5 Cowen, 258. 71 Dall, 335. 8 19 Wend. 419. 95 Denio, 277. or cattle, the very offenses specified in our statute against malicious mischief. * "The distinction, remarks Mr. Christian, between public crimes and private injuries seems certainly to be created by positive laws, and is referable only to civil institutions. To destroy another's property willfully, without making the owner a compensation, is in all cases, a worse crime in reason than theft; because the individual deprived of his property suffered precisely the same injury, and the public loses the benefit of that property, which contributes to the support of no one; and he who does the injury has not the temptation of him who steals to supply his wants. In the case of those actions which are only civil injuries, and to which no legal punishment is annexed, the law has supposed that retribution will be sufficient to deter from the commission of them. But the willful and malicious destruction of another's property by fire, in many cases is punished with death. So, also, is the malicious killing and maiming of another's cattle; yet these detestable and diabolical acts were not crimes by the common law of England; but experience discovered the necessity of rendering them subject to public and severe punishment. Yet, to set fire to a field of standing corn is still only a private injury, though this is an act which strikes at the very being of society; but the Legislature have not yet found it necessary to repress it by the terror of penal laws.1 "In Ranger's Case2 it was held that no indictment lies at common law for unlawfully, with force and arms, maiming a horse, and that the fact itself was only a trespass independent of the statute. It was so held, also, as late as 1840, in Regina v. Wallace. A strong confirmation of this position is found in the fact, that among the very numerous cases in the English books of indictments for maiming, wounding and killing cattle, not a single conviction or precedent of an indictment can be found for the offense at common law, independent of the statute.5 "It has been ingeniously suggested that this absence of precedent and authority may be accounted for on the theory, that the statute was intended as a mere increase of the penalties of the crime at common law. And that the statutes were so ancient, so mumerous, and the penalties so specific, certain and severe, that the statutes were resorted to, and the common law lost sight of." "This explanation can scarcely be regarded as satisfactory. It is hardly conceivable that an offense at common law so common as the killing, wounding and maiming, and so serious as even to demand a multitude of statutes for its suppression should not have been so much as mentioned by Coke, or Hale, or Hawkins. That its existence should have been denied by Blackstone, and by Christian, and that the Court of Queen's Bench, so late as the close of the last century,' should have held it to be not an offense at common law. Nor does it seem at all consistent with probability, that in the numerous reported cases, when the offender has escaped punishment on the ground that the offense charged was not without the terms of the statute, that resort should not have been made to the common law to enforce punishment, if in fact the commonlaw offense existed. 1 Bla. Com. 45. 2 2 East's P. C., ch. 22, sec. 16. 3 cited 2 Russ. on Cr. 497, ch. 43. 41 Crawford & Dix 403. Hawk. P. C., b. 1 ch. 46; 3 Chitty's 5 Cr. L. 1087; Archb. Cr. Pl. 182; Crown Cir. State v. Briggs, 1 Aiken, 226 Loomis v. East's P. C., ch. 22, sec. 16. |