Malice should be alleged, and some of the cases hold that the words "maliciously, wilfully, etc.," are sufficient. Where there are statutes, care must be taken to bring the allegation within the words of the statute, and when so brought the use of particular words will not be held necessary.2 289; Commonwealth v. Cox, 7 Allen (Mass.) 577; McKinney v. People, 32 Mich. 284; State v. Heath, 41 Tex. 426; Nicholson v. State, 3 Tex. Ct. App. 31. The affidavit need not state the value of the injury maliciously inflicted. State v. Clevinger, 14 Ind. 366. Where the statute requires that the damage shall be over a certain sum in order to constitute the offence, it is not necessary to allege the value of each article injured, but only that the damage exceeded the statutory amount. Reg. v. Thomas, 12 Cox C. C. (Eng.) 54; 24 L. T. 398. 1. State v. Rydelott, 7 Blackf. (Ind.) 157. An indictment for malicious mischief must either expressly charge malice against the owner, or otherwise fully describe the offence. 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. State v. Jackson, 12 (N. C.) Ired. 329. See also Thompson v. State, 51 Miss. 353. 2. Force and Arms.-In an indictment for malicious mischief, it is not necessary to aver that the injury was done "with force and arms." If the indictment charge the unlawful and malicious killing of a cow, it is good, without the use of the word "beast;" a cow being a beast within the meaning of the statute. Tavlor v. State, 6 Humph. (Tenn.) 285. "Break, Destroy or Injure."-In an indictment under the statute, which says that "every person who shall wilfully and maliciously break, destroy or injure," etc., the property of another (R. C. 1885, p. 584,8 60), the offence is well described as a breaking alone, or as destroying or as injuring, as either act is to commit an offence, and one or all things may be charged according to the circumstances of the case. Under that statute no negative averment is necessary. State v. Batson, 31 Mo. 343. Omission of word "feloniously" in indictment under Wagn. Stat. 462, § 5 Word "unlawfully" need not be used in charging malicious trespass. State v. Maddox, 85 Ind. 585. Omission of word "malicious" held immaterial. People v. O'Brien, 60 Mich. 8. Omission of words unlawfully and maliciously held bad. Rex v. Lewis, 2 Russ. C. & M. (Eng.) 1066. The word "maliciously" used in a statute requires that the act be shown to have been wilfully done. Reg. v. Pembliton, 2 L. R. C. C. (Eng.) 119. Injury to Cattle.-Under the statute against maliciously killing "the cattle" of another (Rev. Code, 1845, § 57), an indictment for maliciously killing a "certain horse beast, to wit, one mare,' is sufficient. State v. Hambleton, 22 Mo. (1 Jones) 452. Also "certain cattle, to wit, one mare." State v. Clifton, 24 Mo. (3 Jones) 376. Under the same statute a buffalo, though domesticated, is not within the description of "cattle." State v. Crenshaw, 22 Mo. (1 Jones) 457 Driving Cattle from Range.--An indictment for driving cattle from their accustomed range need not describe range nor state distance the cattle were driven. Darnell v. State, 43 Tex. 147. Criminal Intent and Injury.--An indictment on the Rev. Stat., ch. 126, § 39, which charges the defendant, in the words of the statute, with wilfully and maliciously administering a certain poison to the horse of another person, is sufficient, without further averment of any criminal intent, or of any injury to the horse. Com. v. Brooks, 9 Gray (Mass.) 299. Necessary Averment of Injury to Glass. An indictment upon Rev. Stat., ch. 126, § 42, for malicious destruction of glass, must aver the glass to be part of a building. An allegation that it was in a certain building is not sufficient. Com. v. Bean, 11 Cush. (Mass.) 414. Cutting Cable of Fish Car.-On an indictment under Rev. Stat. of Massachusetts, ch. 126, § 39, charging that the defendant wilfully destroyed and in jured a cable to which a lobster car was moored and fastened, proof that he cut the cable a few feet from one end, so as to let the car float off, was held_sufficient to warrant his conviction. Com. v. Soule, 2 Met. (Mass.) 21. Destroying Note.-An indictment for destroying a note, drawn under a statute which punishes any person who shall deface or destroy, etc., any promissory note for the payment of money or property, should state whether the note destroyed was payable in money or property. When the tenor of the note cannot be set forth in such an indictment, because it has been destroyed, the substance and effect of it should at least be averred. Birdg v. State, 31 Ind. 88. Single Offence Though More Than One Owner. A complaint under Gen. Stat., ch. 165, § 41, which alleges that the defendant, at a time and place named, "with force and arms unlawfully and cruelly did beat and torture a certain horse of the property of" the complainant and another person, does not charge two offences. Com. v. Lufkin, 7 Allen (Mass.) 579. See also Long v. State, 43 Tex. 467. Injury to Two Animals One Offence.A malicious injury to two animals, inflicted as one transaction in fact, is but one offence in law. In an information for maliciously killing horses, the manner of killing need nor be set forth, and if it be, it is surplusage. Hayworth v. State, 14 Ind. 590. But when at different times the indictment should charge two offences. Burgess v. State, 44 Ala. 190. Information for injury to property of two owners must negative consent of each owner. Govitt v. State, 25 Tex. App. 419. Proof of injury a number of times the damages amounting in the aggregate to the statutory sum will not sustain an indictment. Reg. v. Williams, 9 Cox C. C. (Eng.) 338. Insufficient Averments.--A complaint, which charges a malicious destruction of cabbages, "situated and growing on land," does not sufficiently charge a malicious injury to personal property, within Stat. 1846, ch. 52, for want of showing that the cabbages were not part of the realty. A complaint on Stat. 1855, ch. 457, for the malicious destruction of a tree, shrub or vine on the land of another, must aver an unlawful entry by the defendant on the (Mass.) 349. An information charged that the defendant did knowingly and wilfully, without lawful authority, cut down and carry off a lime tree between his land and the land of a certain J. H., contrary to the form of the statute. Held, that the offence was not so charged as to be punishable by any law in force in Virginia. Powell's Case, 8 Leigh (Va.) 719. In an indictment for maliciously cutting down a tree marked to designate "a corner of a tract of land." Held, defective in that it did not specify that such corner was not a "point on the boundary," those being the words of the statute. State v. Malloy, 34 N. J. L. 410. See also Com. 7. McLaughlin, 105 Mass. 460; State v. Stanton, 66 N. Car. 640; State v. McKee, 109 Ind. 497. Consequential Damages. The prisoners were indicted for maliciously damaging some growing trees (elsewhere than in a park, etc.), and thereby doing injury to the owners to an amount exceeding £5. It was proved that the real injury to the trees amounted to only £1, but that the cost of replacing the hedge in which they stood would bring up the amount to over £5. Held, that the latter, being only consequential injury, the indictment could not be supported. Reg. v. Whiteman, 25 Eng. Law & Eq. 590. Miscellaneous Cases-When Evidence Would Support Charge of Larceny.-An indictment for malicious mischief will not necessarily be defeated, merely because the acts proved might have supported a charge for larceny. The State v. Leavitt, 32 Maine (2 Red.) 183. When Negative Averment Unnecessary.—An indictment charged that the defendant "unlawfully, wilfully and maliciously did enter upon the lands of R B, there situate, and did then and there set fire to the woods on said land." Held sufficient without stating that the lands were not the property of the defendant. State v. Purdie, 67 N. Car. 326. See also Murrah v. State, 51 Miss. 675. Omission of Date When Offence Committed.-State v. Hoover, 31 Ark. 676; Bailey v. State, 65 Ga. 410. Removing Parts of Wagon.-An information charging that "defendant on, etc., did maliciously and mischievously injure one wagon, the property of P S K, of the value $40, by then and there removing certain parts thereof (men. IV. INTENT.-The intent with which the act is done is material, and if it be shown that the defendant acted in good faith or under a claim of right, the charge of malicious mischief cannot be sustained.1 1. Evidence. Any evidence tending to rebut the charge of malice or going to show the animus of the defendant is admissible though it be in relation to something subsequent to the act itself.2 tioning them), where the said K could never find them, which parts, etc., were of the value of $7, all to the damage of said K, seven dollars," was held sufficient. State v. Williams, 21 Ind. 206. 1. Sattler v. People, 59 Ill. 68; Lossen v. State, 62 Ind. 437; Dawson v. State, 52 Ind. 478; Palmer v. State, 45 Ind. 388; State v. Flynn, 28 Iowa 26; State 7. Kempf, 11 Mo. App. 88; State v. Zinn, 26 Mo. App. 17; State v. Reynolds, 95 N. Car. 616; State v. Winslow, 95 N. Car. 649; State v. Stevens, 109 N. Y. 159; Goforth v. State, 8 Humph. (Tenn.) 37; North Carolina v. Vanderford, 35 Fed. Rep. (U. S.) 282. ComCompare Carter v. State, 18 Tex. App. 573; Knight v. State, 64 Miss. 802. 2. On an indictment for malicious mischief in shooting a mule which was in the defendant's cornfield, evidence of the thievish and unmanageable character of the mule and his proclivity for being in such places, is admissible to show absence of malice. Wright v. State, 30 Ga. 325. See also State v. Graham, 46 Mo. 490; State v. Waters, 6 Jones (N. Car.) 276. Compare Snap v. People, 19 Ill. 80; Jones v. State, 3 Tex. App. 228. In a prosecution for malicious trespass in cutting a canal reservoir embankment, evidence of long disuse of the canal, and that the stagnant water caused sickness in the vicinity of the reservoir, is admissible to rebut the presumption of malice. State v. Bush, 29 Ind. 110. When Defendant Acted Under Legal Advice. Evidence that the defendant entered under legal advice was properly excluded where the facts made it apparent that there was no color of right of entry. People v. Stevens, 109 N. Y. 159. Defendant.—In a criminal prosecution under the Rev. Stat. of Maine, ch. 162, § 13, for wilfully destroying the property of a person without his consent, it is immaterial whether the property came rightfully or wrongfully into the possession of the defendant. The State v. Pike, 33 Maine (3 Red.) 361. In a prosecution under § 2 of the act of 1855, for wilfully destroying a fence, it must be shown that the defendant has been guilty of a trespass, and he may offer any evidence in defence which would be competent for him in an action of trespass. State v. Clark, 5 Dutch. (N. J ) 96. In an indictment for wrongfully desecrating and disfiguring a public burying ground, to show that the defendant was the owner of the fee of small iots within it, under titles derived from various grantees to whom they had been conveyed, "to be used for burial ground," and evidence to show such ownership, is inadmissible. Com. v. Wellington, 7 Allen (Mass.) 299. Competency of Witness.-On the trial of an indictment for malicious mischief, under the fifth section of the fourth article of the penal code, the person whose property is injured is not a competent witness for the State. Blackstone v. The State, 15 Ala. 415. See also West v. State, 32 Tex. 651. The Charge to Jury.-On trial of an indictment for malicious mischief, it is sufficient to charge the jury that they must be "satisfied" as to the ownership of the property in question. phrase "beyond reasonable doubt" is not indispensable. State v. Sears, Phill. (N. Car.) L. 146; State v. Knox, Phill. (N. Car.) L. 312. Evidence of the Same Acts on Other Occasions. Upon an indictment for administering poison with intent to kill horses, evidence of having administered the poison at other times is admissible to show the intent. But if it appear that it was done under the belief that it would improve the appearance of the Materiality of Right of Possession by horses the defendant should be ac It is proper to show that a person indicted for destroying a machine was compelled to do so, and that he had planned to escape from a mob so compelling persons. Rex 7. Crutchley, 5 C. & P. 133. V. JURISDICTION.-A justice of the peace has jurisdiction in an action for malicious mischief to real estate though the defendant claim an adverse title.1 MALICIOUS PROSECUTION-(See also FALSE IMPRISONMENT). I. Definition and Nature, 16. II. General Principle on Which Action Depends, 19. III. Essentials to Malicious Prosecution, 21. 1. Criminal Actions, 21. (a) Malice, 22. (b) Want of Probable Cause, 24. (c) Termination of Former 2. Civil Actions, 32. IV. Who May Sue, 37. V. Who May be Sued, 38. 1. Generally, 38. 2. Partners, 39. 3. Corporations, 39. 4. Infants, 41. 1. Complaint, 42. VII. Practice, 45. VIII. Defences, 51. 1. Generally, 51. 2. Advice of Counsel, 53. IX. Evidence, 58. 1. Strict Rules of Evidence, 58. 2. End of Prosecution, 59. 3. Character, 59. 4. Malice, 61. 5. Want of Probable Cause, 63. X. Damages, 71. I. DEFINITION AND NATURE.-The action for malicious prosecution is, as its name would indicate, one to recover the damages sustained by a defendant in a prior proceeding which has been commenced or carried on from a malicious motive and without any probable cause therefor. Not all unfounded prosecutions by which defendants are injured afford the basis of this action. Usually a plaintiff in a civil action is sufficiently punished for the bringing of an unwarranted action by having the legal costs of such action taxed against him. And it is desirable in the interest of good government that offences against the laws be speedily and certainly punished. So those who set in motion the criminal laws for the apprehension of supposed offenders should be protected in such laudable work if the same is done with correct motive and upon probable cause.2 This action is not in nature unlike an action for slander,3 and it seems may be quitted. Rex v. Mogg, 4 C. & P. prosecution is instituted. Stancliff v. (Eng.) 363. 1. State v. Rising, 10 Nev. 97. 2. Actions for malicious arrest are strictly guarded. The circumstances under which they may be maintained are accurately stated and they are never encouraged except in plain cases. Ventress v. Rosser, 73 Ga. 534; Potter v. Seale, 8 Cal. 217. 3. An action for malicious prosecution is much in the nature of an action for slander, and the malice of the prosecutor, and the disgrace, vexation and expense of the prosecuted, are measured by the sufficiency or insufficiency of the charge on which the not Palmeter, 18 Ind. 321. In both actions the character of the plaintiff is involved. In both actions the plaintiff is required to show malice on the part of the defendant. And in both actions the plaintiff, if he recovers, may recover exemplary or punitive damages. Bailey v. Dodge, 28 Kan. 72. An action on the case for a malicious prosecution may be founded upon an indictment whereon no acquittal can be had, as if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn. For it is not the damages of the plaintiff, but the scandal, vexation and expense, upon joined with one for false imprisonment, although it has necessarily little in connection with that action. 2 In order that the plaintiff may maintain this action, three things must concur. Ist. The motive of the party instituting or prosecuting the suit or proceeding must have been malicious. which this action is founded. Hilliard 1. Bauer v. Clay, 8 Kan. 580; Neil v. on Torts, vol. 2, p. 412. The plaintiff may recover not only for the unlawful arrest and imprisonment and the expenses of his arrest, but also for the injury to his fame and reputation. And such recovery is a bar to subsequent action for slander for the accusation uttered for the purpose of procuring the arrest at the time when it was made. Sheldon v. Carpenter, 4 Comst. (N. Y.) 578. Cooley on Torts. 193. 3 Sutherland on Dam 699. A declaration may contain a count for slander and one for malicious prosecution. Miles v. Oldfield, 4 Yeates (Pa.) 423. Pomeroy on Rem., § 496. Martin v. Mattison, 8 Abb. Pr. (N. Y.) 3; Hull v. Vreeland, 15 Abb. Pr. (N. Y.) 182; Shore v. Smith, 15 Ohio St. 173. In an action for malicious prosecution, damages may be recovered for the injury to reputation, and this will be a bar to an action of slander for the same eause. So undoubtedly a recovery in an action of slander for injury to character through a malicious prosecution would be a bar to a claim for damages on the same ground in a direct action for malicious prosecution. Jarnigan v. Fleming, 43 Miss. 710. The slander and the malicious prosecution must, however, grow out of the same transaction. And where the arrest, for which the action of malicious prosecution had terminated, took place on October 7th, 1859, and the slander for which action was pending was uttered on the 19th of January, 1860, it was held that the former action did not bar the latter. Rockwell v. Brown, 36 N. Y. 207. On the authority of Rockwell v. Brown, the rule is thus stated in Townsend on Slander, section 251. A recovery in an action for malicious prosecution is a bar to subsequent action for slander for the accusation uttered for the purpose of having the arrest made. But when the defendant published the accusation before or after making his complaint to have the plaintiff arrested an action for that publication is not barred by the recovery in the action for the malicious prosecution. See Sheldon v. Carpenter, 4 N. Y. 579; s. C., 55 Am. Dec. 301 and note. 14 C. of L.-2 17 Thorn, 88 N. Y. 270; Marks v. Townsend, 97 N. Y. 590; Barr v. Shaw, 10 Hun (N. Y.) 580; Bradner v. Faulkner, 93 N. Y. 515. Where but one detention is complained of, the party plaintiff may allege in his petition, and prove on the trial, such facts as show either a cause of action for false imprisonment, or one for malicious prosecution, or both. Wagstaff v. Schippel, 27 Kan. 450. In Nebenzahl v. Townsend, 61 How. Pr. (N. Y.) 353, it is held that these actions are inconsistent and cannot be joined. If the imprisonment is under legal process, but the action has been commenced and carried on maliciously and without probable cause, it is malicious prosecution. Murphy v. Martin, 58 Wis. 276; Colter v. Lower, 35 Ind. 285. 2. Addison on Torts (5th ed.) 130. Pollock on Torts 191. False imprisonment is wrongfully restraining the personal liberty of the plaintiff. Malicious prosecution is wrongfully setting the criminal law in motion against him. Stephen on Malic. Pros., Text Book Series, 120. There is no similitude or analogy between an action of trespass or false imprisonment and this kind of action. An action of trespass is for the defendants having done that which, upon the stating of it, is manifestly illegal. This kind of action is for a prosecution which, upon the stating of it, is manifestly legal. Johnstone v. Sutton, 1 T. R. 544. Although in the strict technical sense evidence to sustain an action for false imprisonment will not sustain one for malicious prosecution. Yet if the complaint contains in effect but one cause of action, namely, malicious prosecution, which includes the arrest, separate allegations not subjecting the defendant to increased damages are no ground for reversal. Neil. Thorn, 88 N. Y. 270. 3. Motive. It is abundantly settled that no suit can be maintained against an unsuccessful plaintiff or prosecutor, unless it is shown affirmatively that he was actuated in his conduct by malice or some improper or sinister motive. Malice is essential to the maintenance |