EMENDATIONS TO VOL. II. Page 23. Note 3, line 4, for "118 Mass. 458 " read "113 Mass. 458." Note, end of 2d line in first column, add, "Infra, § 1448.” For "Book III." at top of page read “ Part III.” Page 53. Page 135. Note, 1st column, 2d line from end, for "36 L. T." read "88 L. T." Page 302. Note 1, for "3 Met." read "8 Met." Page 482. Page 526. to "Part IV." Page 630. Note 3, line 7, omit " People v. Clark, 64 N. Y." Chapter heading, erase "Book IV." and change " Part III." Note 4, for " 3 Dall." read " 2 Dall." Page 640. First column, 3d line from end, for "Shenston," read "Sher ston." Second column, 4th line from top, for "impressive " read "oppressive." Second column, 6th line from end, for "1798," read "1798.” BOOK II. CRIMES PART II. - OFFENCES AGAINST PROPERTY. (CONTINUED.) CHAPTER XVI. MALICIOUS MISCHIEF. Statutes in this relation are based on common law, § 1065. Offence at common law is of wider scope in this country than in England, § 1066. Offence includes malicious physical injury to another person or to the public, § 1067. But offence must be secret, or cruel, or involve a breach of the peace, § 1068. Offence is distinguishable from larceny by absence of intent to steal, § 1069. Malice is essential, § 1070. Malice is to be inferred from facts, § 1071. May be negatived by proof of other motives, § 1072. Honest belief in title a defence, § 1072 a. Consent of owner is a defence, § 1073. Injury must be such as to impair utility, § 1074. Owner is competent witness, § 1075. All kinds of property are subjects of offence, § 1076. Owner's title is immaterial, § 1077. Indictment must contain proper technical averments, § 1078. Malice must usually be averred, § 1079. Mode of injury must be averred, § 1080. Statutory offence of endangering lives of railroad travellers, § 1081. Statutory offence of obstructing railroad carriages, § 1082. Statutory offence of malicious injury to man ufactures and machinery, § 1082 a. Statutory offence of injuring mines, § 1082 b. Statutory offence of injuring trees and shrubs, § 1082 c. Statutory offence of killing or maiming animals, § 1082 d. I. BY STATUTE. common § 1065. IN prior editions, the statutes in force in a series of States were given on this topic. They are now omit- Statutes ted for purposes of condensation; but the adjudications based on upon them are hereafter noticed, as throwing light law. upon the exposition of the offence as it exists at common law. 1 VOL. II. 1 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 general terms comprise.1 wider scope in this country than in § 1066. Malicious mischief in this country, as a common law Offence of offence, has received a far more extended interpretation. than has been attached to it in England. In the latter country, each object of investment, as it arose into England. 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 dis 1 For special statutes see infra, § 1081. See Wharton's Precedents, as follows: (470.) Maliciously wounding a cow. tors. (472.) Tearing up a promissory note. (473.) Cutting down trees the property of another, not being fruit, or cultivated, or ornamental trees, under Ohio statute. (474.) Destroying vegetables, under Ohio statute. (475.) Killing a heifer, under Ohio statute. (476.) Cutting down trees, &c. under the North Carolina statute. (481.) Destroying two lobster carts, under the Massachusetts statutes. (482.) Removing a landmark, under the Pennsylvania statutes. (483.) Felling timber in the channel of a particular creek, in a particular county, under the North Carolina statute. (484.) Throwing down fence, under Ohio statute. (485.) Breaking into house and fright ening a pregnant woman. (486.) Cutting ropes across a ferry. (487.) Breaking glass in a building. Mass. Rev. Stats. c. 126, § 42. (488.) Burning a record. [For several forms of indictments which might be classed under this head see Wharton's Precedents, 213, &c.] 3 tinct and several penalties were assigned to the cutting out of the tongue of a cow,1 to the breaking of the fore-legs of a sheep, when attempting to escape enclosures,2 and to the wounding of cattle, when the injury was only temporary. Upwards of eighteen hundred sections, it is estimated, of acts, running from Henry VIII. to George III., repealed or otherwise, were enacted for the special 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 are not in force in this country, malicious mischief, as a common law offence, has here been the subject of frequent adjudications. 8 Offence in cludes ma licious physical the rights of another person or § 1067. In its general application malicious mischief may be defined to be any malicious or mischievous physical 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 maliciously destroy a horse injury to belonging to another; 5 or a cow; 6 or a steer;7 or any beast whatever which may be the property of another; to wantonly kill an animal where the effect is to disturb and molest a family; to be guilty of wanton cruelty to animals,10 either publicly (when the animal belongs to the defendant himself), or secretly, through specific malice against another person who is the owner, in such case mere wantonness not being sufficient; to maliciously cast the carcass of an animal 1 Stat. 37 Hen. 8, c. 6. See supra, § 16. 29 Geo. 1, c. 22, s. 16. 3 Ibid. c. 19. 419. to those of the public. Wh. Prec. 213. See supra, §§ 894 et seq. 8 State v. Wheeler, 3 Vt. 344; Loomis v. Edgerton, 19 Wend. 419; Loomis v. Edgerton, 19 Wend. Henderson's case, 8 Grattan, 708; Resp. v. Teischer, 1 Dallas, 335; State v. Council, 1 Tenn. 305; though see, per contra, Shell v. State, 6 Humph. 283; Taylor v. State, 6 Humph. 285. See supra, § 894. 6 Com. v. Leach, 1 Mass. 59; People v. Smith, 5 Cow. 258. 7 State v. Scott, 2 Dev. & Bat. 35; though see Illies v. Knight, 3 Texas, 316; and see also a learned article in 7 Law Rep. (N. S.) 89, 90. As to dogs see infra, § 1076; supra, § 872. 9 Henderson's case, 8 Grattan, 708. 10 U. S. v. Logan, 2 Cranch C. C. R. 259; State v. Briggs, 1 Aiken, 226. See Statutes, infra, § 1082 d. 11 U. S. v. Logan, 2 Cranch C. C. R. 259; U. S. v. Jackson, 4 Ibid. 483. |