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3. Malice should appear. § 2005. A mere negligent, or wanton, or even passionate injury is not enough to constitute the offence.k There must be, it is said, malice to the owner ;l but it stands to reason that malignant cruelty to an animal is indictable at common law, irrespective of particular malice to the owner; and that a man may be indicted for malicious cruelty to an animal belonging to himself.m The same reasoning would lead us to conclude that malignant and intentional injury to public works of art, or to public libraries, is indictable, irrespective of malice to individuals.
4. Malice, how proved and negatived. $ 2006. How proved. — Of course the usual line of evidence as to proof and disproof of malice is here admissible. n be presumed from declarations; from prior acts; and even from the peculiar malignity of the act.
$ 2007. Negatived by proof of other motive. - It may be negatived by showing that the act was induced by other causes ; e.g. that an animal killed was vicious, and was trespassing on the defendant's grounds. But unless an animal thus trespassing is vicious, and cannot be safely driven out, so that killing or maiming him is the defendant's only safe means of riddance, killing or maiming is not justifiable by the act of the animal having trespassed even within a cultivated inclosed field. p. And malice may also be disproved, by proof that the object of the defendant was not malicious but friendly. 9
$ 2008. (c.) Consent of owner. – This, when malice is alleged against the owner, is a defence. But the onus of proving consent is with the defence. r
k Com. v. Walden, 3 Cush. 558; m State v. Avery, 44 N. H. 392; State v. Robinson, 3 Dev. & Bat. Mosely v. State, 28 Ga. 190. 130; U. S. v. Gideon, 1 Minn. 292; n See ante, $ 631, 647, 649, 651, 712, State v. Enslow, 10 Iowa, 115.
712 b. | State v. Latham, 13 Iredell, 33; o Wright v. State, 30 Ga. 325. See State v. Wilcox, 3 Yerger, 278; North- State v. Waters, 6 Jones N. C. 276; R. cot v. State, 43 Ala. 330; Hobson v. v. Prestney, 3 Cox C. C. 505. State, 44 Ala. 380; Wright v. State, p Snap v. People, 19 III. 80. 30 Ga. 325; State v. Enslow, 10 Iowa, 9 R. v. Mogg, 4 C. & P. 364. 115; though under Tennessee statute r State v. Whittier, 21 Me. 341; see State v. Council, 1 Tenn. 305.
5. Proof of Extent of Injury. $ 2009. Where a statute makes it indictable to injure, proof of injury done, to such an extent as to impair utility, will warrant a conviction. 8
6. Owner of Property as a Witne88. $ 2009 a. As in larceny, the owner of the property injured may be a witness for the prosecution. t
7. What Property may be the Object of the Offence. $ 2010. (a.) Real as well as personal : “ dogs.”
Not merely personal property, as has been already shown, u may be thus protected, but so may real estate, it being held that it is indictable at common law maliciously to injure or deface tombs, v maliciously to strip from a building copper pipes or sheetings, w and to maliciously damage either immovables or movables in any shape. 2 The authorities in reference to the malicious injury of trees, &c., have been already given. y
$ 2011. (6.) Prosecutor's title. — As in larceny, this is a procedure in which the prosecutor's title to the property injured cannot be tried. It is enough if he have any special interest, rightful or wrongful, which may be hurt. z
8. Indictment. $ 2012. (a.) Property. — The manner of describing the property injured, a has been already stated.
(6.) Value. — An indictment is sufficiently descriptive of the property destroyed, if laid to be “one horse beast of the value, &c., of the proper goods and chattels," &c., of. But unless required by statutory discriminations, the averment of value is unessential.c
Welsh v. State, 11 Texas, 368. See v 3 Inst. 202. ante $ 751 6.
w R. v. Joyner, J. Kel. 29. s Com. v. Soule, 2 Met. 21.
x Loomis v. Edgerton, 19 Wend. i State v. Pike, 33 Me. 361. Ante, 419; Resp. v. Teischer, 1 Dallas, 338, $ 779.
where breaking windows ” maliu See ante, $ 2002–3. That there ciously was held indictable. is such a property in dogs as sustains y Ante, $ 2002. an indictment, see State v. Latham, z State v. Pike, 33 Me. 361. See 13 Iredell, 35; State v. Sumner, 2 Ind. ante, $ 1818, 1830; Goforth v. State, 377; State v. McDuffie, 34 N. H. 527; 8 Humph. 37. though sce R. v. Searing, R. & R. 350; a Ante, $ 353-63, 610–15. and ante, $ 1755.
§ 2012 a. (c.) Ownership. — The owner of the property must be alleged, d and the allegation must be proved as laid. e
An indictment charging that the defendant “ did unlawfully, maliciously, and secretly, in the night-time, with force and arms, break and enter the dwelling-house of A., with intent to disturb the peace of the commonwealth, and unlawfully and vehemently did make a noise, &c., and did thereby greatly frighten the wife of the said A., by means whereof she miscarried,” &c., is good at common law, as an indictment for malicious mischief. f
§ 2012 b. (d.) Malice. — An indictment for malicious mischief must either expressly charge malice against the owner, or otherwise fully describe the offence.g It is not sufficient to set forth that the act was done “ feloniously, wilfully, and maliciously," without averring that it was done “mischievously,” or with malice against the owner. h
§ 2012 c. (e.) Specification of injury. — It certainly is not enough to aver that the defendant maliciously “injured” the prosecutor's property. i This is a conclusion of law, and the facts reaching it must be expressed.j
Thus, an indictment for malicious trespass alleged that the defendant did “ maliciously and mischievously injure, and cause to be injured, a certain house, the property of one A., situate," &c., “ of the value of fifty dollars, to the damage of the said A. five dollars, contrary to the form of the statute,” &c. It was
6 State v. Pearce, Peck, 66. Any special property will, as in lar
c See State v. Blackwell, 3 Ind. 529; ceny, sustain ownership. People r. and State v. Shadley, 16 Ind. 230, as Horr, 7 Barbour, 9. Ante, § 1818. a case where under statute value is f Com. v. Taylor, 5 Binney, 281; necessary.
State v. Batchelder, 5 N. Hamp. 549. d Davis v. Com. 30 Penn. Stat. R. g Boyd v. State, 2 Humph. 39; R. (6 Casey) 421; R. v. Patrick, 2 East v. Lewis, 2 Russ. C. & M. 1066. P. C. 1059 ; R. v. Howe, 2 Leach C. C. h State v. Jackson, 12 Iredell, 329; 541 ; and see as to when designation of Hobson v. State, 44 Ala. 380; though locality is required, Com. v. Bean, 11 see Scott v. State, 2 Dever. & Bat. Cush. 414; Com. v. Dougherty, 6 Gray, 35. 349; Com. v. Cox, 7 Allen, 577.
i See State v. Langford, 3 Hawks, e Ante, $ 595. Haworth v. State, 381 ; State v. Jackson, 7 Ind. 270. Peck, 89 ; State r. Weeks, 30 Me. 182. j See ante, § 372.
held, that the offence was insufficiently described, and that the indictment should have shown the specific injury done to the house. k Yet the means or instruments of injury need not be set out. l Where there is a killing, it is enough to say, “maliciously and wilfully did kill,” m and where there is a cutting down of trees, under a statute, it is enough to aver, following the statute, that the defendant, the trees, &c., maliciously and wilfully did cut, &c. n
k State v. Aydelott, 7 Blackf. 157. i State v. Merrill, 3 Blackf. 346. See also State v. Jackson, 7 Ind. 270. m Com. v. Soule, 9 Gray, 304; HayBut under a statute, “cut, injure, and worth v. State, 14 Ind. 590; Taylor v. destroy” is enough. State v. Jones, State, 6 Humph. 285; State v. Scott, 33 Vt. 443. For indictments where 2 Dev. & B. 35; Wh. Prec. 476. the mode of injury is adequately n State v. Watrous, 13 Iowa, 489. stated, see Com. v. Cox, 7 Allen, 577, See State v. Jones, 33 Vt. 443. and Moyer v. Com. 7 Barr, 439.
FORCIBLE ENTRY AND DETAINER.
I. OFFENCE GENERALLY, $ 2013.
MASSACHUSETTS, see $ 2015.
8 HEN. VI. & 15 Rich. II. $ 2021, note. III. FORCIBLE ENTRY, &c., BY JUDI
CIAL CONSTRUCTION, $ 2023. 1. WHO MAY COMMIT THE OFFENCE, S
against a possessor, $ 2026.
band, $ 2027. (c.) Tenant in common, $ 2028. (d.) Person resisting officer of law, $
2029. 2. WHAT MAY BE THE SUBJECT OF IT,
$ 2031 a. 3. WHAT FORCE CONSTITUTES OFFENCE,
when house has been peaceably entered, $ 2034 a.
I. OFFENCE GENERALLY. § 2013. WHEN a man violently takes and keeps possession of lands and tenements of another, with menaces, force and arms, and without the authority of law, he may be indicted, at common law, for forcible entry and detainer. a In many of the states, however, through the substitution of statutory remedies
(c.) Entry by trick or without force,
$ 2035. (d.) Party having right of entry in
general, $ 2037. (e.) Landlord's expulsion of tenant by
will, $ 2038. (f.) Entry by owner against mere in
truder, $ 2039.1 (g.) Evidence required for restitution,
$ 2040. (h.) Evidence to sustain forcible de
tainer, $ 2041.
MUST HAVE, $ 2042.
sary, $ 2042.
charge, $ 2043.
(e.) Prosecutor as witness, $ 2046. 5. INDICTMENT, $ 2047.
(a.) Force, $ 2047.
tainer divisible, $ 2054.
2054 a. (f.) Forcible trespass on personalty,
$ 2055 a. 6. SUMMARY CONVICTIONS BEFORE JUS
TICES, 2055 6.
a 4 Bla. Com. 148; Russ. on Cr. 6th Am. ed. 303; Henderson's case, 8 Grattan, 789.