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might be travelling thereon, it was ruled that if this were done mischievously, and with an intention to obstruct the carriages of the company, the jury would be justified in finding that it was done maliciously. But the presumption, in such case, is one of fact, not of law. Title to the land is no defence.3

§ 1082 a. For the protection of manufactures and machinery analogous statutes have been enacted. Under these statutes the following points have been ruled :

So mali

cious injury to manufactures, materials, and

machinery.

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A warp, not sized, but upon its way to the sizers, to fit it for being used in manufacturing goods, is not a "warp in any stage, process, or progress of manufacture,' or prepared for carding or spinning. It is not necessary that goods should be incomplete to be in "a stage, process, or progress of manufacture," under the statute. The working tools 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.8

In another case in England 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. And where certain side boards were wanting to a machine at the time it was destroyed, but the want did not render it so defective as to prevent it altogether from working,

1 R. v. Upton, 5 Cox C. C. 298.

2 Allison v. State, 42 Ind. 354; McCarty v. State, 37 Miss. 411. Under the Texas statute the obstruction must be of a character likely to endanger life. Bullion v. State, 7 Tex. Ap. 462. 3 State v. Hessenkamp, 77 Iowa, 25. The English "Black Acts," are not in force in South Carolina, State v. Sutcliffe, 4 Strobh. 372; nor in Georgia, State v. Campbell, T. U. P. Charlton,

167. Aliter in South Carolina, as to
statute of 37 Hen. VIII. as to burning
frames. State v. Sutcliffe, ut sup.; supra,
§§ 835, 840. As to English statutes
in force in South Carolina, see, also,
State v. De Bruhl, 10 Rich. 23.

6 R. v. Clegg, 3 Cox C. C. 295.
6 R. v. Woodhead, 1 M. & Rob. 549.
7 R. v. Smith, 6 Cox C. C. 198.
9 R. v. Tacey, R. & R. 452.

9 R. v. Chubb, Deac. C. L. 1518.

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.2 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." 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 threshingmachine."

§ 1082 6. Mines have also been protected by special enactments. In this country there can be no question that malicious injury to mining property is indictable at common law. But in such matters the interests involved are so large,

1 R. v. Bartlett, Deac. C. L. 1517.

R. v. Hutchins, Deac. C. L. 1517. See R. v. Mackerel, 4 C. & P. 448; R. v. Fidler, Ibid. 449.

So as to mines.

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

* R. v. Fisher, 10 Cox C. C. 146; L. and himself were forced to join the R. 1 C. C. 7.

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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. IV. 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, weaving, etc., or otherwise manufacturing or preparing any goods or articles of silk, woollen, linen, etc. R. v. Ashton, 2 B. & Ad. 750. Supra, §§ 1066, 1076.

and the risk 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. 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.2

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 statutes, apple and pear-trees grafted in a wild stock, and producing fruit, are "trees;" and cutting down a tree is sufficient to bring a case within the statute, although the tree is not thereby totally destroyed.* 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

1 R. v. Norris, 9 C. & P. 241.

6 R. v. Whateley, 4 M. & R. 431.

2 R. v. Whittingham, 9 C. & P. But see supra, §§ 1072 a, 1077; Daw234-Patteson. son v. State, 52 Ind. 478.

As to "stacks," see R. v. Salmon, R. & R. 26; R. v. Spencer, D. & B. 131, 7 Cox C. C. 189; Com. v. Macomber, 3 Mass. 354.

3 R. v. Taylor, R. & R. C. C. 373. See R. v. Whiteman, Dears. 353; Read v. State, 1 Ind. 511; State v. Shadley, 16 Ibid. 230.

4 R. v. Taylor, R. & R. C. C. 373. 5 R. v. Boucher, 5 Jur. 709.

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

a field which has been overgrown with wild brush. It is usually enough, in such cases, if the indictment follow the statute.2

§ 1082 d. Similar legislation has taken place to protect animals from cruelty, irrespective of the question of ownership.3 Statutory

animals.

As "cattle," under the statutes, have been considered cruelty to steers; pigs; hogs ; asses; geldings; horses, mares, and colts. In Missouri, however, the term has been held not to

was held bad. R. v. Lewis, 2 Russ. C. & M. 1066.

In an indictment on 6 Geo. III. 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. IV. 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 malicious-, ly damaging such wood, "the injury done being to the amount of one shilling at least." R. v. Dodson, 9 A. & E. 704.

1 Hall v. Crawfurd, 5 Jones, N. C. L. 3. As to "timber," see Com. v. Percavil, 4 Leigh, 686.

Under the statute of 24 & 25 Vict. evidence of dainage 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.

2 State v. Priebnow, 14 Neb. 484. 9 By 24 & 25 Vict. c. 97, s. 40, "whosoever shall unlawfully and malíciously kill, maim, or wound any cattle

shall be guilty of felony." (Former provision, 7 & 8 Geo. IV. c. 30, s. 16.) By sec. 58, "malice against the owner of the cattle or other animal injured is unnecessary to be shown."

For statutes in this country, see State ". Avery, 44 N. H. 392; State v. Pratt, 54 Vt. 484; People v. Brunell, 48 How. N. Y. Pr. 435; State v. Barnard, 88 N. C. 661; State v. Comfort, 22 Minn. 271; Tatum v. State, 66 Ala. 465; Davis v. State, 13 Tex. Ap. 215; Jones v. State, 9 Ibid. 178. As to common law, see supra, §§ 1068, 1070. That the offence is exclusively statutory, see State v. Allen, 72 N. C. 114.

The history of New York legislation on this topic is given in Mr. Gerry's argument in Davis v. Society for Prevention of Cruelty to Animals, 75 N. Y. 302; 16 Abb. N. Y. Pr. N. S. 73; 21 Alb. L. J. 265. That cruel experiments on animals are illegal, see Davis v. Society, ut sup. For indictment for driving cattle from their range, see Long v. State, 43 Tex. 467. For cruel sports see infra, § 1465 a.

4 State v. Abbott, 20 Vt. 537.

5 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 Whart. Cr. Ev. § 124.

6 State v. Enslow, 10 Iowa, 115. 7 R. v. Whitney, 1 M. C. C. 3.

8 R. v. Mott, 2 East P. C. 1075; 1 Leach C. C. 73, n.

R. v. Paty, 2 East P. C. 1074; 1 Leach C. C. 72; 2 W. Bl. 721; R. v.

include a tame buffalo.1

have been held in this

Dogs, though not the subject of larceny, country to be protected by the statutes."

The statute of 12 & 13 Vict. c. 92, § 2, which makes cruelty to "any animal" penal, goes on, in its interpretation clause, to specify as falling under this head, "any horse . . . sheep cat, or any other domestic animal." Under the words italicized cocks are held to be included.3

Injury

must be serious.

goat, dog,

It is not necessary that the injury inflicted be permanent, if it be serious and painful. Hence driving a nail into a horse's frog out of malice to the owner was held to be within 9 Geo. I. c. 22, though the damage was but temporary ;5 and so of putting deleterious acid in a mare's eye. It has also been held, that injuring a mare internally, not out of malice, but merely from wantonness, is within the statute."

The omission to kill a wounded animal which is in great suffering is not cruelty, under the statute.

It is not necessary to prove, when this is out of the power of the prosecution, the particular instrument of cruelty used.'

§ 152.

Budge v. Parsons, 3 B. & S. 382Wightman and Mellor, JJ.

Magle, 2 East P. C. 1076; State v. Haughton, 5 C. & P. 559. See supra, Abbott, 20 Vt. 237; State v. Hambleton, 22 Mo. 452. And see, generally, as to "cattle," R. v. Tivey, 1 C. & K. 704; 1 Den. C. C. 63. Supra, § 1070; R. v. Austen, R. & R. 490. As to "beast," see Taylor v. State, 6 Humph. 285.

1 State v. Crenshaw, 22 Mo. 457. 2 State v. McDuffie, 34 N. H. 523; State v. Sumner, 2 Ind. 377; Kinsman v. State, 77 Ibid. 132; contra, Com. v. Maclin, 3 Leigh, 809. In Minnesota a dog was held not within a statute specifying "horse, cattle, or other beast." U. S. v. Gideon, 1 Minn. 292. In State v. Harriman, 75 Me. 562, a dog was held not to be a "domestic animal" under the statute. 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. IV. c. 30, s. 16, for killing the cow. R. v.

Ashworth v. State, 63 Ala. 120. See, however, R. v. Jeans, 1 C. & K. 539.

6 R. v. Hayward, 2 East P. C. 1076; R. & R. 16.

6 R. v. Hughes, 2 C. & P. 420; R. v. Owens, 1 Moody C. C. 205.

7 R. v. Welch, L. R. 1 Q. B. D. 23; 13 Cox C. C. 121. Shaving a horse's tail is "disfiguring," within the statute. Boyd v. State, 2 Humph. 39.

Powell v. Knights, 38 L. T. 607. It is otherwise when the owner sends out a wounded or diseased horse to graze, thereby causing it intense pain, which is held to be "torturing" under the statute. Everitt v. Davies, 38 L. T. 360.

9 R. v. Bulloch, L. R. 1 C. C. 115; 11 Cox C. C. 125.

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