CHAPTER VIII. MALICIOUS MISCHIEF. I.-BY STATUTE. § 2001. IN prior editions, the statutes of Massachusetts, New York, Pennsylvania, Virginia, and Ohio were given on this topic. They are now omitted for purposes of condensation; but the adjudications upon them are hereafter noticed, as throwing light upon the exposition of the offence as it exists at common law. It is proper to add, also, that for two reasons the points about to be stated bear closely upon the offence as determined by statute. In the first place, most of the statutes are but a codification of the common law. In the second place, many of these statutes define the offence, as the "malicious injury of the property of another;" leaving it to the common law to define what these very general terms comprise. II. AT COMMON LAW, § 2002. 1. GENERAL SCOPE OF OFFENCE, § 2002. 2. HOW DISTINGUISHABLE FROM LARCENY, § 2004 a. 3. MALICE SHOULD APPEAR, § 2005. 4. MALICE, HOW PROVED AND NEGATIVED, § 2006. (a.) How proved, § 2006. (b.) Negatived by proof of other mo- (c.) Consent of owner, § 2008. 5. PROOF OF EXTENT OF INJURY, § 2009. 6. OWNER OF PROPERTY AS A WITNESS, § 2009 a. 7. WHAT PROPERTY MAY BE THE OBJECT OF OFFENCE, § 2010. (a.) Real as well as personal: "dogs," § 2010. (b.) Prosecutor's title, § 2011. 8. INDICTMENT, § 2012. (a.) Property, § 2012. (b.) Value, § 2012. (d.) Malice, § 2012 b. (e.) Specification of injury, § 2012 c. II. AT COMMON LAW.k 1. General Scope of Offence. § 2002. Malicious mischief in this country, as a common law offence, has received a far more extended interpretation than (473) Cutting down trees the property of another, not being fruit, or cultivated, or ornamental trees, under Ohio statute. k See Wharton's Precedents, as follows: :- (470) Maliciously wounding a cow. tors. (472) Tearing up a promissory note. (474) Destroying vegetables, under Ohio statute. has been attached to it in England. In the latter country, each object of investment, as it arose into notice, became the subject of legislative protection; and as far back as the reports go, there has scarcely been a single article of property, which was likely to prove the subject of mischievous injury, which was not sheltered from such assaults by severe penalties. Thus, for instance, a series of statutes, upwards of twelve in number, beginning with 37 Hen. 8, c. 6, and ending with the black act, were provided for the single purpose of preventing wanton mischief to cattle and other tame beasts; and so minute was the particularity of the law-makers that distinct and several penalties were assigned to the cutting out of the tongue of a cow, to the breaking of the fore-legs of a sheep, when attempting to escape inclosures, m and to the wounding of cattle, when the injury was only temporary. n Upwards of eighteen hundred sections, it is estimated, of acts, running from Henry VIII. to George III., repealed or otherwise, were enacted for the especial purpose of providing against malicious mischief; and as the statutory penalty was both more specific and more certain than that of the common law, the books, in this class of offences, give but few examples of common law indictments. But as the later English statutes do not obtain in this country, malicious mischief, as a common law offence, has here been the subject of frequent adjudications. o In its general application it may be (475) Killing a heifer, under Ohio (484) Throwing down fence, under statute. (476) Cutting down trees, &c. statute. Ohio statute. (485) Breaking into house and fright ening a pregnant woman. (486) Cutting ropes across the ferry. (487) Breaking glass in a building. Mass. Rev. Stats. ch. 126, s. 42. (488) Burning a record. [For several forms of indictments which might be classed under this head, see Wharton's Precedents, 213, &c.] I Stat. 37 Hen. 8, c. 6. m 9 Geo. 1, c. 22, sect. 16. • Loomis v. Edgerton, 19 Wen. 419. defined to be any malicious or mischievous injury, either to the rights of another, or to those of the public in general. Thus, it has been considered an offence at common law to destroy a horse belonging to another; p or a cow; q or a steer; r or any beast whatever which may be the property of another, s particularly where the effect is to disturb and molest a family;t to be guilty of wanton cruelty to animals in general, u either publicly (when the animal belongs to the defendant himself), v or secretly, though specific malice against the owner is necessary, mere wantonness not being sufficient; to cast the carcass of an animal in a well in daily use; w to poison chickens, fraudulently tear up a promissory note, or maliciously break windows; a to mischievously set fire to a number of barrels of tar belonging to another; y to girdle or maliciously injure public trees kept either for use or ornament; z to put cow-itch on a towel, with intent to injure a person about to use it; a to maliciously break up a boat; b to cut off the hair of the tail or mane of a horse, when done maliciously;c to discharge a gun with the intention of annoying and injuring a sick person in the immediate vicinity; d and to maliciously and violently break into a room with violence for the same purpose; e though it is held not an indictable offence to remove a stone from the boundary line between the p Resp. v. Teischer, 1 Dallas, 338; State v. Council, 1 Tenn. 305; though see per contra, Shell v. State, 6 Humph. 283; Taylor v. State, 6 Humph. 285. See ante, § 1781. q Com. v. Leach, 1 Mass. 59; People v. Smith, 5 Cowen, 258. w State v. Buckman, 8 New Hamp. 208. x Resp. v. Teischer, 1 Dallas, 338. y State v. Simpson, 2 Hawks, 460. z Com. v. Eckert, 2 Browne, 251; Loomis v. Edgerton, 19 Wend. 420; per contra, Brown's case, 3 Greenleaf, r State v. Scott, 2 Dev. & Bat. 35; 177; and State v. Helmes, 5 Ired. Wh. Prec. 213. Ante, § 1781. 364, where it was held not to be indictable to maliciously cut down a crop of Indian corn standing in a field. a People v. Blake, 1 Wheeler's C. C. 490. b Loomis v. Edgerton, 19 Wend. 420. c Boyd v. State, 2 Humph. 39. This was under a statute prohibiting disfiguring." d Com. v. Wing, 9 Pick. 1. e Com. v. Taylor, 5 Binn. 377; Hackett v. Com. 3 Harris, 95. premises of A. and B. with intent to injure B. To the first chapter of this work the reader is referred for other cases of the same class. § 2003. The recent inclination, however, so far as the common law is concerned, is to restrict the party injured to his civil remedies, except, (1,) where the offence is committed secretly, in the night-time, or in such a way as to inflict peculiarly wanton injury ;f1 or, (2,) where it is marked with malignant cruelty to animals; or, (3,) where it is accompanied with a breach of the peace. Thus, in New York, an indictment charging that the defendant, "with force and arms, unlawfully, wilfully, and maliciously did break in pieces and destroy two windows in the dwelling-house of M. C., to the great damage of the said M. C., and against the peace," &c., was held not to set forth an offence indictable by the laws of the state; it being held that an act which would otherwise be only a private trespass, does not become indictable by being charged to be done with force and arms, nor by being alleged to have been committed maliciously, or without claim of right, or without any motive of gain. Whether if the breaking of the windows in this case had been charged to have been done secretly, or in the night-time, the act would have been indictable, was doubted by Beardsley, C. J., it being generally said that the cases in which indictments have been sustained for maliciously killing or wounding domestic animals, depend upon features peculiar to such offences, as the depravity of mind, and the cruelty of disposition, which such acts evince. g So, maiming or wounding an animal, without killing it, was held in New Jersey, in 1858, to be not indictable either at common law or under the statute law of that state. g1 f State v. Burrough, 2 Halsted, 426. f1 See People v. Moody, 5 Parker, 568, where an indictment for wantonly and clandestinely injuring harness in the daytime, was held good at common law. And see State v. Newby, 64 N. C. 23; Northcot v. State, 43 Ala. 330. g Kilpatrick v. The People, 5 Denio, 277. See this case commented on in 5 Parker, 568. g1 The State v. Beekman, 3 Dutch. (N. J.) 124. “In Wharton's Cr. Law So, in (ed. 1857), § 2002," said Chief Justice Green, in delivering the opinion of the court, "it is said that malicious mischief in this country, as a common law offence, has received a far more extended interpretation than has been attached to it in England, and the learned author has defined the common law offence of malicious mischief, as received in this country, to be any malicious or mischievous injury either to the rights of another or to those of Texas, an injury to personal property, to be indictable, must be accompanied by a breach of the peace. g2 § 2004. So, in North Carolina, Nash, J., said: “At common law no trespass to chattels was an indictable offence without a breach of the peace. Not that an actual breach must be committed, but something more must be done than what amounts to a mere civil trespass, expressed by the terms vi et armis. The peace must be actually broken, or the act complained of must directly and manifestly tend to it, as being done in the presence of the owner, to his terror or against his will. In the case of Mills, 2 Dev. 420, the court in their opinion use the expression, in the presence of the party,' &c. It is manifest the owner is meant, for in the succeeding sentence they say, Where they neither put the owner in fear, nor invoke him to an immediate redress of his wrongs, nor excite him to protect the possession of his chattels by personal prowess—and none of these can happen in the absence of the owner and his family the trespass is not indictable."" h 2. How distinguishable from Larceny. 6 § 2004 a. This point has been already discussed; i and it has been shown that whenever goods are fraudulently taken against the owner's will, animo furandi, the offence is larceny; while when they are simply maliciously injured, without being taken animo furandi, it is malicious mischief. It must also be noticed that there are articles of property which are not objects of larceny (e. g. real estate, dogs, &c.),j which a person may be indicted for maliciously injuring. 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 offence at the common law, is unwarranted either by principle or authority. It would render every wilful trespass an indict able offence." State v. Beekman, 3 Dutch. (N. J.) 124. See also to same effect R. v. Ranger, 2 East P. C. 1074. g2 Illies v. Knight, 3 Texas, 312. h State v. Phipps, 10 Iredell, 17. i Ante, § 1781; but see as to some extent conflicting with views of the text, State v. Leavitt, 32 Me. (2 Red.) 183. j See post, § 2010. 489 |