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Statutes exist both in England and in this country re- Statutes quiring common carriers to take due care of animals common under their charge for transportation. Federal statutes to this effect have been held constitutional.1

carriers.

Wanton cruelty es

offence.

To" cruelty," deliberateness and malice are essential, and these are negatived by proof of passion, arising from provocation or excitement, or that the act was one of discipline, however ill-judged; and so when the object was sential to bona fide, to improve the appearance of the animal.* Drunkenness, when the mind is incapable of intent, is a defence, but not otherwise. But when the object is simply to use the animal more effectively for sport (e. g., cutting the combs of cocks so as to fit them better for fighting), this is no defence."

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When the cruelty is such as is incident to the subjugation or destruction of the animal for the purposes of use or food (e. g., trapping or taming wild creatures, catching of fish by hooks laid at night), or to preclude its depredations or ward off its attacks, this may be defended on ground of

I U. S. v. Bost. etc., R. R., 15 Fed. Rep. 209.

For proceedings under statute requiring carriers to provide food and water to cattle, see Johnson v. Colom, L. R. 10 Q. B. 544; Swan v. Sanders, 14 Cox C. C. 566.

Whether a car or team is overloaded is a question of fact for the jury. People v. Tinsdale, 10 Abb. Pr. N. S. 374. Duncan v. State, 49 Miss. 331; Thompson v. State, 51 Ibid. 353. That under these particular statutes malice to the owner need not be shown, see R. v. Tivey, i C. & K. 704; 1 Den. C. C. 68; Brown v. State, 26 Ohio St. 176. Supra, § 1070.

3 Supra, §§ 106 et seq; State v. Avery, 44 N. H. 392 (under a statute which makes it penal to "wilfully and maliciously kill, maim, beat or wound any horse, cattle, sheep, or swine"). See Thompson's Case, 51 Miss. 353; Rembert v. State, 56 Ibid. 280.

R. v. Mogg, 4 C. & P. 363.
VOL. II. -2

pline" or

necessity as

a defence.

State v. Avery, 44 N. H. 392, citing R. v. Thomas, 7 C. & P. 87.

6 Murphy v. Manning, L. R. 2 Ex. D. 307, 313; 36 L. T. 592. See U. S. v. McDuell, 5 Cranch C. C. 391. But how is it with cutting the ears and tails of terriers?

In Pitts v. Miller, L. R. 9 Q. B. 380; 30 L. T. 328; Cockburn, C. J., went so far as to hold that putting rabbits into an inclosed field and then setting two dogs at them to see how many each dog could kill, was not "baiting" under the statute. That "worrying" animals with dogs may be cruelty, see Elmsley's Case, 2 Lew. C. C. 126.

That cock-fighting is cruelty to the animal, apart from the question of public scandal, and of gambling, see Budge v. Parsons, 3 B. & S. 382; Martin v. Hewson, 10 Exch. 737. But see Morley v. Greenhalgh, 3 B. & S. 374; Clark v. Hague, 8 Cox C. C. 324; 2 E. & E. 281; and see infra, § 1465 a.

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duty or necessity. When the injury is inflicted with malignity, so as to torture, it is no defence that the animal injured was trespassing on the defendant's field." But all proper force may be used to eject an animal doing damage to an inclosed field; and it may even be killed if it cannot otherwise be excluded.3

Indictment must conform to statute.

Under statutes making indictable cruelty to animals, irrespective of ownership, it is not necessary to aver the owner's name. When, however, the ownership is inaccurately stated, this may be a variance.5 Nor is it necessary, particularly, to describe the animal injured; though if there be inserted a description of the animal likely to mislead, a variance might be fatal." "Maiming" is not held to be a sufficient designation of the injury; though it is otherwise as to "killing." When the statute prohibits "cruelly beating," it is enough to aver that the defendant did "cruelly beat," etc. 10 This, however, may be doubted, when the pleader could readily have individuated the of fence." "Cruelly over-drive" has been held to be enough when the statute prohibits cruel over-driving.12 "Cruelly torture" is enough

1 Supra, §§ 95 et seq.; Jansen v. Brown, 1 Camp. 41; Protherie v. Mathews, 5 C. & P. 581. See argument of Hoar, J., in Com. v. Lufkin, 7 Allen, 582; and see Com. v. Wood, 111 Mass. 408; Walker v. Court of Special Sessions, 4 Hun, 441.

2 Snap v. People, 19 Ill. 80; Thompson v. State, 67 Ala. 106. See Davis v. State, 12 Tex. Ap. 11. Supra, § 1072.

3 In Branch v. State, 41 Tex. 624, adopted in Benson v. State, 1 Tex. Ap. 11, the court said: "It may be done under such circumstances as negative a wanton act-as where a man has a good fence, and a horse or cow is in the habit of trespassing upon his crop, and he kills it during an act of trespass on his crop, not from wantonness, but to prevent the destruction of his crop, he would not be criminally liable." And so where poison is laid in

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an inclosure to kill a trespassing dog; Daniel v. Janes, L. R. 2 C. P. D. 351. As to spring guns, see supra, § 464.

State v. Avery, 44 N. H. 392 (under statute); Com. v. McClellan, 101 Mass. 34; Com. v. Whitman, 118 Ibid. 458 (under statute); State v. Brocker, 32 Tex. 612; Benson v. State, 1 Tex. Ap. 6; Darnell v. State, 6 Ibid. 482; Jones v. State, 9 Ibid. 178. See R. v. Woodward, 2 East P. C. 653.

5 Smith v. State, 43 Tex. 433; Collier v. State, 4 Tex. Ap. 12. 6 Ibid. ley, R. & Pr. § 94.

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See, however, R. v. Chalk-
R. 258. Whart. Cr. Pl. &
Supra, § 932 .

7 Whart. Cr. Ev. § 146.

8 State v. Pugh, 15 Mo. 509.

9 Com. v. Sowle, 9 Gray, 304. Supra, 1080.

10 Com. v. McClellan, 101 Mass. 34. See Whart. Cr. Pl. & Pr. § 221. 12 State v. Comfort, 22 Minn. 271.

under the Massachusetts statute. "Maliciously" is essential;2 but not alternative or cumulative predicates of the statute when not part of the case. It is not duplicity to join the over-driving of two horses in a team in one indictment; nor to aver the poisoning of eight horses, when the poison was distributed in the feed placed before the whole eight.5

1 Com. v. Thornton, 113 Mass. 457; Com. v. Whitman, 118 Ibid. 459.

Thompson's Case, 51 Miss. 353; State v. Rector, 34 Tex. 565.

Rembert v. State, 56 Miss. 280.

4 Com. v. Welsh, 7 Gray, 324; People v. Tinsdale, 10 Abb. Pr. N. S. 374; State v. Comfort, 22 Minn. 271; Whart. Cr. Pl. & Pr. § 254.

R. v. Mogg, 4 C. & P. 364.
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CHAPTER XVII.

FORCIBLE ENTRY AND DETAINER.

1. CHARACTER of Offence. Forcible exclusion of another from his lands and tenements, is an offence at common law, § 1083. Modification of common law by statutes, § 1084.

Gist of offence is the violence, § 1085.

Statutory offence requires less force

than common law, but either freehold or leasehold title, § 1086.

Any person forcibly putting another out of possession is indictable, § 1087.

Wife may be so indicted against

her husband, § 1088.

So as to tenant in common eject-
ing his companion, § 1089.
So as to third person dispossessing
officer of law, § 1090.
Real estate, corporeal or incorpo-
real, may be thus protected, §
1091.

To forcible trespass on personalty
force is essential, § 1092.
And so to forcible entry, § 1093.
Force may be inferred from facts,

§ 1094.

Rule does not apply to out-houses, § 1095.

Entry by trick is not forcible, § 1096.

Peaceable entry may be followed by forcible detainer, § 1097.

Forcible continuance may be for cible entry, § 1098.

When there is right of entry, violence is essential to offence, § 1099.

Tenant at will cannot be expelled by force, § 1100.

Owner may forcibly enter as

against intruder, § 1101.

Legal right to enter is essential to writ of restitution, § 1102. Forcible detainer to be inferred from facts, § 1103.

At common law possession is necessary to prosecution, § 1104. Title is not at issue, § 1105. Prosecutor may prove force, § 1106.

II. INDICTMENT.

Indictment must contain technical terms, § 1107.

For common law offence, possession only need be averred, § 1108.

Possession must be described as in

ejectment, § 1109.

Entry and detainer are divisible, § 1110.

Title is necessary to restitution, § 1111.

Indictment for forcible trespass

must aver violence, § 1112. Practice to sustain summary convictions, § 1113.

I. CHARACTER OF OFFENCE.

§ 1083. WHEN a man violently takes and keeps possession of any lands and tenements occupied by another, with menaces, force,

exclusion

of another

from his lands and

tenements

and arms, and without the authority of law, he may be indicted at common law, for forcible entry and detainer. To enter, Forcible with intent to keep possession, constitutes the offence of forcible entry. Of this there may be a conviction without proving a forcible detainer. A forcible detainer is where a party, "having wrongfully entered upon any lands or tenements, detains such lands or tenements in a manner which would render an entry upon them for the purpose of taking possession forcible." In many of the States, through the substitution of statutory remedies giving the injured party summary relief by recourse to a civil tribunal, criminal procedure in such cases has fallen into disuse.3

is an of

fer.ce at common

law.

§ 1084. The following English statutes have been in several States held to be part of the common law :

1 4 Bla. Com. 148; Russ. on Cr. (6th Am. ed.) 303; Henderson's Case, 8 Grat. 708. See State v. Laney, 87 N. C. 535; Coggins v. State, 12 Tex. Ap. 109. As to malicious injury to timber and fences, see supra, § 1082c; Franklin v. State, 86 Ind. 90; Brumley v. State, 12 Tex. Ap. 609.

2 Steph. Dig. C. L. art. 79.

s In Massachusetts (Rev. Stats. c. 104), the person thus forcibly expelled or kept out may take, from any justice of the peace, a writ in the form of an original summons (Ibid. § 4), and the suit thus commenced is subjected to the same incidents as accompany other civil actions before justices of the peace. Ibid. § 5. Under this statute it has been held that a mere refusal to deliver possession, when demanded, will not warrant the process for forcible entry and detainer; but the possession must be attended with such circumstances as might excite terror in the owner, and prevent him from claiming his rights; such as apparent violence offered in deed or word to the person, having unusual offensive

:

weapons, or being attended by a multitude of people. Com. v. Dudley, 10 Mass. 403. Where a writ of restitution has been executed, and the proceedings are afterwards quashed upon certiorari, a new writ of restitution may be awarded. Com. v. Bigelow, 3 Pick. 31. The process, it is said, will not lie against one who has merely entered into land under a levy upon it, as the property of a tenant in possession ; Ibid.; nor for the lessor of a tenant at will against a stranger for expelling the tenant. Ibid.

In New York, see People v. Anthony, 4 Johns. 198; People v. Van Nostrand, 9 Wend. 62; People v. Rickert, 8 Cow. 226.

The statutes of both Pennsylvania and Virginia are simply declaratory of the common law, as modified by 5 Ric. II. st. 1, c. 8, and 21 Jac. I. c. 15, as will hereafter appear in the adjudication given to them by the courts. See 2 Penn. L. J. 391, for a learned article on the law as obtaining in Pennsylvania.

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