in a well in daily use; 1 to maliciously poison chickens, fraudulently tear up a promissory note, or break windows; 2 to mischievously set fire to a number of barrels of tar belonging to another; 3 to maliciously girdle or injure trees or plants kept either for use or ornament; to put cow-itch on a towel, with intent to injure a person about to use it; to maliciously break up a boat; to maliciously cut off the hair of the tail or mane of a horse, with intent to annoy or distress the owner;7 to discharge a gun with the intention of annoying and injuring a sick person in the immediate vicinity; to maliciously and indecently break into a room with violence for the same purpose; though it is held not an indictable offence to remove a stone from the boundary line between the premises of A. and B. with intent to injure B.10 But offence must be secret, or cruel, or involve a breach of the peace. § 1068. 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; 11 or, (2.) where it is marked with malignant cruelty to animals; or, (3.) where it is accompanied with a breach of the peace.12 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," 1 State v. Buckman, 8 New Hamp. This was under a statute prohibiting disfiguring." Infra, § 1082 d. 203. 2 Resp. v. Teischer, 1 Dallas, 338. 8 State v. Simpson, 2 Hawks, 460. 4 Loomis v. Edgerton, 19 Wend. 420; Com. v. Eckert, 2 Browne, 249; per contra, Brown's case, 3 Greenleaf, 177; and State v. Helmes, 5 Ired. 364, where it was held not to be indictable to maliciously cut down a crop of Indian corn standing in a field. See infra, § 1082 c. 8 Com. v. Wing, 9 Pick. 1. Supra, § 167. 9 Com. v. Taylor, 5 Binn. 277; Hackett v. Com. 15 Penn. St. 95. See infra, § 1093. 10 State v. Burroughs, 2 Halsted, 426. 11 See People v. Moody, 5 Parker C. R. 568, where an indictment for wantonly and clandestinely injuring 5 People v. Blake, 1 Wheeler's C. harness in the daytime was held good C. 490. at common law. And see State v. Loomis v. Edgerton, 19 Wend. Newby, 64 N. C. 23; Northcot v. State, 43 Ala. 330. 420. Boyd v. State, 2 Humph. 39. 12 Dawson v. State, 52 Ind. 478. &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 trespass does not become indictable by being charged to have been done with force and arms, or 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 said generally 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.1 Maiming or wounding an animal, also, 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.2 And it is held in other States that an injury to personal property, to be indictable, must be accompanied by or provocative of a breach of the peace.3 1 Kilpatrick v. People, 5 Denio, 277. See this case commented on in 5 Parker C. R. 568. 2 State v. Beekman, 3 Dutch. (N. J.) 124. "In Wharton's Crim. Law (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 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 indictable offence." State v. Beekman, 3 Dutch. (N. J.) 124. See also, to same effect, R. v. Ranger, 2 East P. C. 1074; State v. Allen, 72 N. C. 114. 8 Dawson v. State, 52 Ind. 478; Illies v. Knight, 3 Tex. 312. 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 Distin guishable from larceny by absence of intent to steal. 1 § 1069. 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 not objects of larceny (e. g. real estate, dogs, &c.),2 for maliciously injuring which a person may be indicted. Malice is § 1070. Neither negligent injury, nor an injury inflicted angrily in hot blood, is sufficient to constitute the ofThere must be malice to the owner or pos5 sessor; but there is ground to argue that malignant essential to fence. the offence. 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.' " State v. Phipps, 10 Ired. 17. And see State v. Manuel, 72 N. C. 201. 1 Supra, §§ 894 et seq. But see, as to some extent conflicting with views of the text, State v. Leavitt, 32 Me. 183. 2 See infra, §§ 1076, 1082 d. 3 Com. v. Walden, 3 Cush. 558; State v. Robinson, 3 Dev. & Bat. 130; Dawson v. State, 52 Ind. 478; U. S. v. Gideon, 1 Minn. 292; State v. Enslow, 10 Iowa, 115; Thompson v. State, 51 Miss. 353. 4 R. v. Austen, R. & R. 490; R. v. Kean, 2 East P. C. 1075; State v. Latham, 13 Ired. 33; State v. Newby, 64 N. C. 23; State v. Hill, 79 N. C. 656; State v. Wilcox, 3 Yerg. 278; State v. Pierce, 7 Ala. 728; Northcot v. State, 43 Ala. 330; Hobson v. State, 44 Ala. 380; Duncan v. In R. v. Pembliton, 12 Cox C. C. 607; L. R. 2 C. C. R. 119, the defendant was indicted for unlawfully and maliciously committing damage upon a window in the house of the prosecutor, contrary to the 23 & 24 Vict. c. 97, s. 51. It appeared that the defendant, who had been fighting with other persons in the street, after being turned out of a public house, went across the street, and picked up a stone, and threw at them. The stone missed them, passed over their heads, and broke a window in a public house. The jury found that he intended to hit one or more of the persons he had been fighting with, and did not intend to break the window. It was held by all the judges, that upon this finding the prisoner was not guilty of the charge within the above statute. It was held generally to support a conviction under sect. 51 there must be a wilful and intentional doing State, 49 Miss. 331; Wright v. State, 30 Ga. 325; Branch v. State, 41 Tex. 622; State v. Enslow, 10 Iowa, 115; though, under Tennessee statute, see State v. Council, 1 Tenn. 305; and under English statute, R. v. Tivey, 1 C. & K. 705. 5 Stone v. State, 3 Heisk. 457. cruelty to an animal is indictable at common law, irrespective of particular malice to the owner, at least in cases of shock or of an unlawful act in relation to the property damaged. Lord Coleridge, C. J.: "I am of opinion that this conviction must be quashed. The facts of the case are these: The prisoner and some other persons who had been drinking in a public-house were turned out of it at about eleven P. M. for being disorderly, and they then began to fight in the street near the prosecutor's window. The prisoner separated himself from the others, and went to the other side of the street, and picked up a stone and threw it at the persons he had been fighting with. The stone passed over their heads, and broke a large plate-glass window in the prosecutor's house, doing damage to an amount exceeding £5. The jury found that the prisoner threw the stone at the people he had been fighting with, intending to strike one or more of them with it, but not intending to break the window. The question is whether, under an indictment for unlawfully and maliciously committing an injury to the window in the house of the prosecutor, the proof of these facts alone, coupled with the finding of the jury, will do? Now I think that is not enough. The indictment is framed under the 24 & 25 Vict. c. 97, s. 51. The act is an act relating to malicious injuries to property, and sect. 51 enacts that whosoever shall unlawfully and maliciously commit any damage, &c., to or upon any real or personal property whatsoever of a public or a private nature, for which no punishment is herein before provided, to an amount exceeding £5, shall be guilty of a misdemeanor. There is also the 58th section which deserves attention: Every punishment and forfeiture by this act imposed on any person ma liciously committing any offence, whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise.' It seems to me on both these sections that what was intended to be provided against by the act is the wilfully doing an unlawful act, and that the act must be wilfully and intentionally done on the part of the person doing it, to render him liable to be convicted. Without saying that, upon these facts, if the jury had found that the prisoner had been guilty of throwing the stone recklessly, knowing that there was a window near which it might probably hit, I should have been disposed to interfere with the conviction; yet as they have found that he threw the stone at the people he had been fighting with, intending to strike them and not intending to break the window, I think the conviction must be quashed. I do not intend to throw any doubt on the cases which have been cited, and which show what is sufficient to constitute malice in the case of murder. They rest upon the principles of the common law, and have no application to a statutory offence created by an act in which the words are carefully studied." Blackburn, J.: "I am of the same opinion, and I quite agree that it is not necessary to consider what constitutes wilful malice aforethought to bring a case within the common law crime of murder, when we are construing this statute, which says that whosoever shall unlawfully and maliciously commit any damage to or upon any real or personal property, 1 scandal to the community; and that a man may in such cases be indicted for malicious cruelty to an animal belonging to himself.2 The same reasoning would lead us to conclude that ma to an amount exceeding £5, shall be guilty of a misdemeanor. A person may be said to act maliciously when he wilfully does an unlawful act without lawful excuse. The question here is, can the prisoner be said, when he not only threw the stone unlawfully, but broke the window unintentionally, to have unlawfully and maliciously broken the window. I think that there was evidence on which the jury might have found that he unlawfully and maliciously broke the window, if they had found that the prisoner was aware that the natural and probable consequence of his throwing the stone was that it might break the glass window, on the principle that a man must be taken to intend what is the natural and probable consequence of his acts. But the jury have not found that the prisoner threw the stone, knowing that, on the other side of the men he was throwing at, there was a glass window, and that he was reckless as to whether he did or did not break the window. On the contrary, they have found that he did not intend to break the window. I think, therefore, that the conviction must be quashed." Pigott, B., concurred. Lush, J.: "I also think that on this finding of the jury we have no alternative but to hold that the conviction must be quashed. The word 'maliciously means an act done either actually or constructively with a malicious intention. The jury might have found that he did intend actually to break the window or constructively to do so, as that he knew that the stone might probably break it when he threw it. But they have not so found." Cleasby, B., concurred. In Com. v. Williams, 110 Mass. 401, it was held that for a conviction under the St. of 1862, c. 160, which provides for the punishment of any one who "wilfully or maliciously injures" a building, it is not enough that the injury was wilful and intentional, but it must have been done out of cruelty, hostility, or revenge. "The jury," said the court, "must be satisfied that the injury was done out of a spirit of cruelty, hostility, or revenge. This element must exist in all those injuries to real or personal property done wilfully and maliciously which are enumerated and made criminal in the several statutes, among the more recent of which is the statute including the act charged in this indictment. The injury must not only be wilful, that is, intentional and by design, as distinguished from that which is thoughtless or accidental, but it must in addition be malicious in the sense above given. The wilful doing of an unlawful act without excuse, which is ordinarily sufficient to establish criminal malice, is not alone sufficient under these statutes. The act, although intentional and unlawful, is nothing more than a civil injury, unless accompanied with that special malice which the words 'wilful and malicious' imply." 1 See U. S. v. Jackson, 4 Cranch C. C. 483; Brown v. State, 26 Oh. St. 176; Mosely v. State, 28 Ga. 190. 2 State v. Avery, 44 N. H. 392; Mosely v. State, 28 Ga. 190. See Com. v. Tilton, 8 Met. 232; Kilpatrick v. People, 5 Denio, 277. Under statute malice to owner may not be essential. R. v. Tivey, 1 C. & K. 704, cited infra, § 1082 d. |