In

stated bear closely upon the offence as determined by statute. 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

in this

country than in

England.

§ 1066. Malicious mischief in this country, as a common law offence, has received a far more extended interpretation Offence of. vulescope than has been attached to it in England. In the latter country, each object of investment, as it arose into 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. VIII. 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 distinct and several penalties were assigned to the cutting out of the tongue of a cow, to the breaking of the fore-legs of a sheep, when attempting to escape inclosures, 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 to George III., repealed or otherwise, were enacted for the special purpose of providing against malicious mischief; and as the statutory penalty was both more specific and more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."

Offence in

cludes maphysical the rights injury to

licious

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.1 Thus, it has been considered an offence at common law to maliciously destroy a horse belonging to another; or a cow; or a steer; or any beast whatever which may be the property of another; to those of the public. to wantonly kill an animal where the effect is to disturb and molest a family; to be guilty of wanton cruelty to animals," 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 into a well in daily use; to maliciously poison chickens, fraudulently tear up a promissory note, or break windows; 10 to mischievously set fire to a number of barrels of tar belonging to another;" to maliciously destroy any barrack, corn or crib;12 to maliciously girdle or injure trees or plants kept either for use or ornament ;13 to put cow-itch on a towel,

That it is a misdemeanor at common law, see 2 East P. C. 1072; Black v. State, 2 Md. 376.

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, Ibid. 285. See supra, § 894.

Com. v. Leach, 1 Mass. 59; People v. Smith, 5 Cow. 258.

State v. Scott, 2 Dev. & Bat. 35; Whart. Prec. 213. See supra, §§ 894

et seq.

5 State. Wheeler, 3 Vt. 344; Loomis v. Edgerton, 19 Wend. 419; Henderson's Case, 8 Grattan, 708; 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. Cf. Mr. Gerry's argument in Davis v. Society for Prevention of Cruelty, etc., 75 N. Y. 362.

Henderson's Case, 8 Grattan, 708. 1 U. S. v. Logan, 2 Cranch C. C. R,

259; State v. Briggs, ,1 Aiken, 226. See Statutes, infra, § 1082 d. But it has been held that "wounding" a horse or other animal belonging to another without violence or specific malice to the owner is not indictable. Ranger's Case, 2 East P. C. 1074. See State v. Beekman, 3 Dutch. 124; State v. Manual, 72 N. C. 201, cited infra, §§ 1068, 1082 d. As to cruel sports see infra, §§ 1461, 1465 a.

s U. S. v. Logan, 2 Cranch, C. C. R. 259; U. S. v. Jackson, 4 Ibid. 483. • State v. Buckman, 8 N. H. 203. 10 Resp. v. Teischer, 1 Dallas, 338. 11 State v. Simpson, 2 Hawks, 460. 12 Parris v. People, 76 Ill. 274. 13 Loomis v. Edgerton, 19 Wend. 420; Com. v. Eckert, 2 Browne, 249; per contra, Brown's Case, 3 Greenl. 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.

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; 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.

must be

with malice

involve a

breach of the peace.

§ 1068. The recent inclination, however, so far as the common But offence law is concerned, is to restrict the party injured to his civil remedies, except (1) where the offence is committed to owner, or secretly, in the night-time, or in such other way as to inflict peculiarly wanton injury, so as to imply malice to the owner; or (2) where it is accompanied with a breach of the peace. 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," etc., 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 kill

6 State v. Burroughs, 2 Halsted, 426.

7 See People v. Moody, 5 Parker C. R. 568, where an indictment for wantonly and clandestinely injuring harness in the daytime was held good at common law. And see State v. Newby, 64 N. C. 23; Northcot v. State, 43 Ala. 330. Under the English statutes, see R. v. Martin, L. R. 8 Q. B. D. 547; 14 Cox C. C. 633; 45 L. T. (N. S.) 444.

8 Dawson v. State, 52 Ind. 478.

ing 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. 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. And it is held in other States that at common law an injury to personal property, to be indictable, must be marked by special malice to the owner, or accompanied by or provocative of a breach of the peace.3

§ 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 steal. estate, dogs, etc.),5 for maliciously injuring which a person may be indicted.

§ 1070. Neither negligent injury, nor an injury inflicted angrily in hot blood, is sufficient to constitute the offence.

malice to the owner1 or possessor, though such owner or possessor is personally unknown to the wrongdoer; but there is essential to ground to argue that malignant cruelty to an animal is the offence. indictable at common law, irrespective of particular malice to the owner, when there is shock or scandal to the community ;* and that a man may in such cases be indicted for malicious cruelty to an animal belonging to himself. The same reasoning would lead us to conclude that malignant and intentional injury to public works of art, or to public libraries, is indictable, irrespective of malice to individuals.