of a loom, and the cords employed to raise the harness, are "tackle employed in weaving." And so of any material part of the machinery.2 It has been further held that where the owner removed a wooden stage belonging to the machine on which the man who fed the machine was accustomed to stand, and took away the legs, and it appeared in evidence that though the machine could not be conveniently worked without some stage for the man to stand on, yet that a chair or table, or a number of sheaves of corn would do nearly as well, and that it could also be worked without the legs; it was held, that the machine was an entire one within the act, though the stage and legs were wanting.3 And where certain side boards were wanting to a machine at the time it was destroyed, but the want did not render it so de. fective as to prevent it altogether from working, though it would not work so effectually as if those boards had been made good; it was held that it was still a threshing-machine within the meaning of the statute. A threshing-machine is within the purview of the act, though it had been, prior to its destruction, taken to pieces to avoid an expected mob.5 Plugging up the feed pipe of a steam-engine, and displacing other parts of the machinery so as to cause its stoppage, are within the statute." And so of injuring ploughs used in agriculture. As has been just incidentally seen, when a machine is broken by a mob, it is no defence that it was previously taken to pieces by the owner for its protection.8 On the other hand, where the prosecutor had not only taken the machine to pieces, but had broken the wheel of it, before the mob came to destroy it, for fear of having it set on fire and endangering his premises, and it was proved that without the wheel the engine could not be worked, it was held that the remaining parts of the machine, which were destroyed by the mob, did not constitute a threshing-machine.9 So as to 1082 6. Mines have also been protected by special enactments. In this country there can be no question that malimines. cious injury to mining property is indictable at common law. But in such matters the interests involved are so large, and the risks to life so great, that statutes have been passed imposing heavy penalties on malicious injury to mines. Under these statutes it has been held that the offence of damaging an engine was consummated where a steam-engine used in draining and working a mine having been stopped and locked up for the night, the defendant got into the engine-house, and set it going, and there being no machinery attached, the engine went with great velocity, and received damage.2 A scaffold erected for the purpose of working a vein of coal is such an erection used in conducting the business of a mine, that injuring with intent to destroy it, or to render it useless, is included in the statute.3 So as to trees and shrubs. 1082 c. We have already seen that in several jurisdictions in this country it is at common law indictable to maliciously injure fruit or ornamental trees. In England prosecutions of this kind are now exclusively statutory; the statutes having absorbed the common law. Under these On an indictment for breaking a threshing-machine, the judge allowed a witness to be asked whether the mob by whom the machine was broken did not compel persons to go with them, and then compel each person to give one blow to the machine; and also whether, at the time when the prisoner and himself were forced to join the mob, they did not agree together to run away from the mob the first opportunity. R. v. Crutchley, 5 C. & P. 133. As to meaning of "stack" see Com. v. Macomber, 3 Mass. 354. An indictment on 7 & 8 Geo. 4, c. 30, s. 3, for feloniously damaging warps of linen yarn, with intent to destroy or render them useless, need not allege that the warps at the time of the damage done were prepared for or employed in carding, spinning, 20 weaving, &c., or otherwise manufacturing or preparing any goods or articles of silk, woollen, linen, &c. R. v. Ashton, 2 B. & Ad. 750. 1 Supra, §§ 1066, 1076. 2 R. v. Norris, 9 C. & P. 241. 3 R. v. Whittingham, 9 C. & P. 234 Patteson. The English statutes are as follows: "Whosoever shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood, growing in any park, pleasure-ground, garden, orchard or avenue, or in any ground adjoining or belonging to any dwelling-house (in case the amount of injury done shall exceed the sum of £1), shall be guilty of felony." 24 & 25 Vict. c. 97, s. 20. (Former provision, 7 & 8 Geo. 4, c. 30, s. 19.) statutes, apple and pear-trees grafted in a wild stock, and producing fruit, are "trees; "1 and cutting down a tree is sufficient to bring a case within the statute, although the tree is not thereby totally destroyed.2 As to hop-binds, however, it was held that when "destroying" is alleged, it must be shown that the plant died in consequence of the injury received. Proof of the infliction of injury by cutting and bruising is insufficient. It has been further ruled that where shrubs are cut upon an unproved allegation that they are likely to be injurious to an adjoining wall, it is a malicious trespass, though the title to the spot on which the shrubs grow is in dispute between the parties. "Woods," when used in this relation in a statute, includes a field which has been overgrown with wild brush.5 "Whosoever shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood growing elsewhere than in any park, pleasureground, garden, orchard, or avenue, or in any ground adjoining to or belonging to any dwelling-house (in case the amount of injury done shall exceed the sum of £5), shall be, guilty of felony." Ibid. s. 24. (Previous enactment, 7 & 8 Geo. 4, c. 30, s. 19.) 1 R. v. Taylor, R. & R. C. C. 373. See State v. Shadley, 16 Ind. 230. 2 R. v. Taylor, R. & R. C. C. 373. 8 R. v. Boucher, 5 Jur. 709. 4 R. v. Whateley, 4 M. & R. 431. But see supra, §§ 1072 a, 1077; Dawson v. State, 52 Ind. 478. The title to the land on which the plant grows is not in controversy in such a prosecution. Possession is enough. State v. Gurnee, 14 Kans. 296. Supra, §§ 1072 a, 1077. Where the prisoner was indicted for damaging apple-trees growing in a garden, and the indictment alleged that the damage was done feloniously and not unlawfully or maliciously, this was held bad. R. v. Lewis, 2 Russ. C. & M. 1066. In an indictment on 6 Geo. 3, c. 36, for destroying trees, the name of the owner of the trees must have been truly stated, otherwise it is fatal. R. v. Patrick, 2 East P. C. 1059. And see R. v. Howe, 1 Leach C. C. 481; 2 East P. C. 588. A party might be convicted under the 7 & 8 Geo. 4, c. 30, s. 24, of having wilfully and maliciously damaged growing wood, to the value of sixpence, though section 20 expressly imposed a penalty for unlawfully and maliciously damaging such wood, "the injury done being to the amount of one shilling at least." R. v. Dodson, 9 A. & E. 704. 5 Hall v. Crawfurd, 5 Jones L. 3. Under the statute of 24 & 25 Vict. evidence of damage committed at several times in the aggregate, but not at any one time exceeding £5, will not sustain an indictment. R. v. Williams, 9 Cox C. C. 338. It has been held, that at common law an indictment does not lie for maliciously injuring trees (Brown's case, 3 Greenl. 177), and growing corn (State v. Helmes, 5 Ired. 364). Cases to the contrary will be found supra, § 1067. So of killing and maiming 4 § 1082 d. Similar legislation has taken place to protect animals. As" cattle," under the statute have been considered steers; 2 pigs; 3 hogs; asses; 5 geldings ; 6 animals. horses, mares, and colts. In Missouri, however, the term has been held not to include a tame buffalo.8 Under "property," dogs, though not the subject of larceny, have been held in this country to be included. But in order to constitute a maiming of a horse, it has been said that a permanent injury must have been inflicted on the animal; 10 though wounding a horse out of malice to the owner, by driving a nail into the frog of his hoof, is a “maiming," even if curable; 11 and so is a fortiori pouring acid into the eye of a mare, and thereby blinding her.12 And to shave a horse's tail is to "disfigure" under the statute.13 Under the statute of 4 Geo. 4, it was held that to injure sheep by setting dogs on them was not maiming; 14 but this contravenes views heretofore vindicated; 15 and may now be regarded as over 1 By 24 & 25 Viet. c. 97, s. 40, "whosoever shall unlawfully and maliciously kill, maim, or wound any cattle shall be guilty of felony." (Former provision, 7 & 8 Geo. 4, c. 30, s. 16.) Section 41 covers other animals. By sec. 58, "malice against the owner of the cattle or other animal injured is unnecessary to be shown." 2 State v. Abbott, 20 Vt. 537. 3 R. v. Chapple, R. & R. C. C. 77. Compare Com. v. Percavil, 4 Leigh, 686; Duncan v. State, 49 Miss. 331. As to description of animals see Wh. Cr. Ev. § 124. 4 State v. Enslow, 10 Iowa, 115. 5 R. v. Whitney, 1 M. C. C. 3. State v. Sumner, 2 Ind. 377. See supra, § 1076. If A. set fire to a cow-house and burnt to death a cow which was in it, A. was indictable under 7 & 8 Geo. 4, c. 30, s. 16, for killing the cow. R. v. Haughton, 5 C. & P. 559. See supra, § 152. 10 R. v. Jeans, 1 C. & K. 539. 11 R. v. Haywood, 2 East P. C. 1076; R. & R. C. C. 16. See supra, § 1074. 12 R. v. Owens, 1 M. C. C. 205. Supra, § 1074. On an indictment for administering sulphuric acid to eight horses, with intent to kill them, the prosecutor may give evidence of administering, at different times, to show the intent; 6 R. v. Mott, 2 East P. C. 1075; 1 but if the jury is satisfied that the Leach C. C. 73, n. 7 R. v. Paty, 2 East P. C. 1074; 1 Leach C. C. 72; 2 W. Bl. 721; R. v. Magle, 2 East P. C. 1076; State v. Abbott, 20 Vt. 237; State v. Hambeleton, 22 Mo. 452. 8 State v. Crenshaw, 22 Mo. 457. offender administered the poison under 15 Supra, § 152; U. S. v. McDuell, 5 Cranch C. C. 391. ruled;1 and upon an indictment under 24 & 25 Vict. for maliciously wounding a horse, it is not necessary to prove that any instrument was used to inflict the wound.2 It is no defence that the cattle were trespassing on the prosecutor's field. Under the present English statute, it is not necessary to prove malice to the owner; though malice in the act is essential.5 At common law, as we have seen, indictments have been repeatedly sustained in this country for maliciously injuring animals.6 Ownership of the animal if alleged must be proved. But under statute the averment may be unnecessary.8 Cruelty to animals has been made in some States a statutory offence.9 1 Elmsley's case, 2 Lew. C. C. 126. 2 R. v. Bullock, L. R. 1 C. C. 115; 37 L. J. M. C. 47; 17 L. T. N. S. 516; 16 W. R. 405; 11 Cox C. C. 125. On an indictment for maliciously killing two sheep, the property in them may be laid to be in the agister. R. v. Woodward, 2 East P. C. 653. An indictment on 9 Geo. 1, c. 22, must have stated the species and sex of cattle wounded or injured; to state that the prisoner maimed certain cattle was not sufficient. R. v. Chalkley, R. & R. C. C. 258. Merely "maiming" is not sufficient. State v. Pugh, 15 Mo. 509; Aliter " killing." Com. v. Sowle, 9 Gray, 304. If a prisoner mixed poison with the corn intended for the feed of eight horses, and then gave each horse his feed from this mixture, an indictment charging that he did administer the poison to the eight horses is correct. Mogg, 4 C. & P. 364. R. v. Snap v. People, 19 Ill. 80. 4 R. v. Tivey, 1 C. & K. 704; 1 Den. C. C. 63; S. P., Brown v. State, 26 Oh. St. 176. Supra, § 1070. 5 Duncan v. State, 49 Miss. 331; Thompson v. State, 51 Miss. 353. Supra, §§ 1068, 1070. Contra, State v. Allen, 72 N. C. 114. For indictment for driving cattle from their range see Long v. State, 43 Tex. 467. 7 Smith v. State, 43 Tex. 433. Supra, §§ 932 et seq. 8 Com. v. McClellan, 101 Mass. 84; State v. Brocker, 32 Tex. 611. • See State v. Avery, 44 N. H. 392; Com. v. Lufkin, 7 Allen, 570; Com. v. McClellan, 101 Mass. 34; Com. v. Thornton, 118 Mass. 458; People v. Brunell, 48 How. (N. Y.) Pr. 435; State v. Comfort, 22 Minn. 271. That cruel experiments are thus punishable see Davis v. Soc. for Prevention of Cruelty, 16 Abb. N. Y. Pr. N. S. 73. That cruelty is not imputable to matters of discretionary discipline see Com. v. Wood, 111 Mass. 408; Walker v. Special Sessions, 4 Hun, 441. 23 |