§ 1071. The usual line of evidence as to proof and disproof of malice is here admissible.1 Malice may be inferred from declarations; from prior acts; and even from the peculiar be inferred malignity of the act.2 Malice is to from facts. May be negatived by proof of other motives. § 1072. Malice may be negatived by showing that the act was induced by other causes; e. g., that an animal killed was vicious, and was trespassing on the defendant's grounds, threatening hurt which could not otherwise be averted. But unless an animal thus trespassing is vicious, and cannot be safely driven out, so that killing or maiming him is the defendant's only safe means of riddance, killing or maiming is not justifiable, because the animal trespassed even within a cultivated inclosed field. And malice may also be disproved, by proof that the object of the defendant was not malicious but friendly." And on a charge of cruelly over-driving a horse, ignorance and want of malice is a defence." § 1072 a. An honest belief in title is a defence to an indictment for a malicious trespass." And this is peculiarly the case when the trespass is the removal of fences.8 § 1073. Consent of owner, when malice against the owner is alleged, is a defence. But the onus of proving consent is on the defendant." 1 See supra, §§ 101 et seq.; and see fully Whart. Crim. Ev. §§ 46, 734 et seq. See R. v. Welch, 13 Cox C. C. 121; Allison v. State, 42 Ind. 354; State v. Sheets, 89 N. C. 543. See for other cases, infra, § 1082 d. 3 R. v. Prestney, 3 Cox C. C. 505; Wright v. State, 30 Ga. 325. See State v. Waters, 6 Jones (N. C.), 276; Hodges v. State, 11 Lea, 528; Thomas v. State, 14 Tex. Ap. 700. Intra, § 1082 d. Snap v. People, 19 Ill. 80. 5 R. v. Mogg, 4 C. & P. 364. Com. v. Wood, 111 Mass. 408. ↑ Infra, § 1077; R. v. Langford, C. & M. 602; R. v. Matthews, 14 Cox C. C. 5; Dye v. Com., 7 Grat. 662; Sattler Honest be lief in title a defence cious tres to mali pass. Consent of defence. owner is a v. People, 59 Ill. 68; Howe v. State, 10 Ind. 492; Windsor v. State, 13 Ibid. 375; Losser v. State, 62 Ibid. 437; Goforth v. State, 8 Humph. 37; State v. Gurnee, 14 Kans. 296; Malone v. State, 11 Lea, 701; Behrens v. State, 14 Tex. Ap. 121. Supra, § 87, and cases cited infra, § 1082 d. 8 In Palmer v. State, 45 Ind. 388, the point in the text is sustained by Downey, C. J., citing Howe v. State, 10 Ind. 492; Windsor v. State, 13 Ibid. 375. 9 State v. Whittier, 21 Me. 341; Welsh . State, 11 Tex. 368. See supra, §§ 141 et seq. See as to North Carolina statute, State v. Waters, 6 Jones, N. C. 276. Injury must be such as to impair utility. Owner is §1074. To sustain a conviction, there must be proof of injury done to such an extent as to impair utility, or materially diminish value.1 § 1075. As in larceny, the owner of the property incompetent jured may be a witness for the prosecution. witness. All kinds of offence. § 1076. Not merely personal property, as has been of property already shown, may be thus protected, but so may real are subjects estate, it being held that it is indictable at common law maliciously to injure or deface tombs, maliciously to strip from a building copper pipes or sheetings, and maliciously to damage either immovables or movables in any way. The authorities in reference to the malicious injury of trees and plants are elsewhere given." § 1077. In prosecutions of this class the prosecutor's title to the property injured cannot be tried. It is enough if he had title is im- any special interest, rightful or wrongful, which may have been hurt.8 Owner's material. § 1078. The manner of describing the property injured' has been already stated. Indictment must contain proper technical averments. The nature of the injury must be specified.10 An indictment is sufficiently descriptive of the property destroyed, if laid to be "one horse beast of the value, etc., of the proper goods and chattels." But unless required by statutory direction, the averment of value is unessential.12 1 Com. v. Soule, 2 Met. 21; State v. Cole, 90 Ind. 112. Infra, § 1082 d. 2 State v. Pike, 33 Me. 361. See supra, §§ 1067, 1068. That there is such a property in dogs as sustains an indictment for malicious mischief, see State v. Latham, 13 Ired. 33; State v. Sumner, 2 Ind. 377; State v. McDuffie, 34 N. H. 523; though see contra, under statute, R. v. Searing, R. & R. 350; Com. v. Maclin, 3 Leigh, 809; U. S. v. Gideon, 1 Minn. 292; and supra, § 872; infra, § 1082 d, for statutes. 43 Inst. 202. 6 R. v. Joyner, J. Kel. 29. • Loomis v. Edgerton, 19 Wend. 419; Resp. v. Teischer, 1 Dallas, 335, where "breaking windows" maliciously was held indictable. 7 Supra, § 1067; infra, § 1082 c. 8 State v. Pike, 33 Me. 361; People 10 Brown v. State, 76 Ind. 85. 12 See State v. Blackwell, 3 Ind. 529; and State v. Shadley, 16 Ibid. 230, as cases where, under statute, value is necessary. The owner of the property must be alleged,' if known, and the allegation must be proved as laid." must usually be Malice averred. § 1079. An indictment for malicious mischief must either expressly charge malice in the defendant against the owner, or otherwise fully describe the offence as indicating general malice. It is not sufficient, at common law, to set forth that the act was done "wilfully and maliciously," without averring that it was done with malice against the owner or possessor. When, however, the term "maliciously" is not in the statute, it will be both sufficient and essential to use the statutory terms; and when "wilful" is in the statute, it must be averred. Mode of must be injury § 1080. It is not enough to aver that the defendant maliciously "injured" the prosecutor's property? This is a conclusion of law, and the facts leading to it must be expressed. Yet the means or instruments of injury need not be set out. Where there is a killing, as a statutory offence, it is enough to say," maliciously and wilfully did kill," and where 1 R. v. Patrick, 2 East P. C. 1059; R. v. Howe, 2 Leach, 541; Davis v. Com., 30 Penn. St. 421; and see as to when designation of locality is required, Com. v. Bean, 11 Cush. 414; Com. v. Dougherty, 6 Gray, 349; Com. v. Cox, 7 Allen, 577. 2 averred. 39; Thompson v. State, 51 Miss. 353. See State v. Allison, 90 N. C. 734. State v. Jackson, 12 Ired. 329; Hobson v. State, 44 Ala. 380; though see State v. Scott, 2 Dev. & Bat. 35. 5 Com. v. Turner, 8 Bush. 1. Woolsey v. State, 14 Tex. Ap. 57. 7 See State v. Langford, 3 Hawks, 381; State v. Jackson, 7 Ind. 270. See Whart. Cr. Pl. & Pr. §§ 154, 230; State v. Aydelott, 7 Blackf. 157. 9 State v. Merrill, 3 Blackf. 346. See Supra, § 977. Haworth v. State, Peck, 89; State v. Weeks, 30 Me. 182. An indictment charging that the defendant "did unlawfully, maliciously, and secretly, in the night-time, with force and arms, break and enter the McKinney v. People, 32 Mich. 284; dwelling-house of A., with intent to State v. Jackson, 7 Ind. 270. Under a disturb the peace of the commonwealth, statute, "cut, injure, and destroy," is and unlawfully and vehemently did enough. State v. Jones, 33 Vt. 443. make a noise, etc., and did thereby For indictments where the mode of ingreatly frighten the wife of the said jury is adequately stated, see Com. v. means whereof she miscarried," Cox, 7 Allen, 577, and Moyer v. Com., 7 Barr, 439. A., by etc., good at common law, as an in dictment for malicious mischief. Com. で。 Taylor, 5 Binn. 277. See State v. Batchelder, 5 N. H. 549. 3 Supra, § 1070; R. v. Lewis, 2 Russ. 10 Com. v. Sowle, 9 Gray, 304; State v. Merrill, 3 Blackf. 346; Hayworth v. State, 14 Ind. 590; Taylor v. State, 6 Humph. 285; State v. Scott, 2 Dev. & on Cr. 1067; Boyd v. State, 2 Humph. B. 35; Whart. Prec. 476. there is a cutting down of trees, under a statute, it is enough to aver, following the statute, that the defendant, the trees, etc., maliciously and wilfully did cut, etc.1 Statutory offence of endangering lives of railroad travellers. § 1081. At common law an intentional obstruction of a railroad train, in such a way as to endanger the lives of travellers, is as much an assault on such travellers as would be shooting into a car. The common law offence, however, has been generally superseded by statutes both in England and the United States. Under these statutes it has been ruled that it is no defence that the defendant was impelled by other motives than an intention to injure the train.3 Wilfully throwing a stone at a train so as to endanger the safety of passengers is within the statutes, as it is unquestionably indictable at common law." It has been further held that on an indictment for wilfully and maliciously casting anything upon a railway carriage or truck, either with intent to injure it or to endanger the safety of persons in the train, if an intent to endanger the safety of travellers be proved, it is no defence that the train was a goods train, and there was no person on the particular truck. But where the indictment charges maliciously throwing stones into a railway carriage, with intent to endanger the safety of a person in it, it has been ruled that there must be evidence of an intent to do some grievous bodily harm, such as would support an indictment for wounding a particular person with that intent; and, if it appear that the prisoner's intention was only to commit a common assault on some person in the carriage, the case is not sustained." The statutes, also, have been ruled not to cover neglect on part of drivers and stokers to keep a good lookout for signals, according to the rules and regulations of the railway company, the conse State v. Watrous, 13 Iowa, 489. See State v. Jones, 33 Vt. 443. And as to indictments generally, see Com. v. Thornton, 113 Mass. 457; Com. v. Whitman, 118 Ibid. 458; State v. Comfort, 22 Minn. 271; Caldwell v. State, 49 Ala. 34. 2 See supra, § 608; McCarty v. State, 37 Miss. 411. 10 3 R. v. Holroyd, 2 M. & Rob. 339. See supra, § 119. 4 R. v. Bowry, 10 Jur. 211. 6 R. v. Sanderson, 1 F. & F. 37Channell. This accords with the rule stated supra, § 186; but see contra, R. v. Court, 6 Cox C. C. 202. 7 R. v. Rooke, 1 F. & F. 107. quence of which neglect is that a collision occurs, and the safety of passengers is endangered.1 It is not necessary, it has been ruled under the statutes, to aver in the indictment that the train belonged to a corporation duly chartered.2 Obstruct § 1082. Special statutes, also, have been enacted in England, and have been adopted by several of our own legislatures, making indictable the obstruction of engines and railway ing engine carriages.3 or railroad carriage indictable. Under these statutes it is held to be a misdemeanor to place a truck across a railway line in such a manner that if a carriage or an engine had come along the line it would have been obstructed, and the safety of passengers, who might have been in any such carriage, would have been endangered; nor is it to this charge a defence that the railway was not opened for passenger traffic, and no carriage or engine was in fact obstructed. It is enough to sustain such a case to prove that the act was done by certain persons employed by the defendant to repair a wall between the railway and his premises adjoining; and that on one occasion the defendant himself, who was standing by, nodded his head, and directed the workmen to go on, is sufficient to warrant the jury in convicting the defendant. Placing a single piece of timber on the road will constitute the offence; and so of obstructing a horse railroad by putting a wagon on its track, it being the duty of wagons to turn out when requested by the driver of the horse-car. Changing a signal so as to cause a train to go slower than it otherwise would is an obstructing; and so, it is said, is stretching out the arms as a signal.9 It has been held, however, that it is not indictable for a passenger (without malice or wantonness) to pull a signal rope attached to a bell on the engine.10 The intent is to be inferred from the facts; and where the evidence was that the prisoners placed a stone upon a line of railway, so as to cause an obstruction to any carriages that I R. v. Pardenton, 6 Cox C. C. 247. 2 R. v. Bowry, 10 Jur. 211. For homicide resulting from such misconduct, see supra, §§ 337 et seq. 4 R. v. Bradford, 8 Cox C. C. 309; 6 Jur. N. S. 1102: 2 L. T. N. S. 392; Bell C. C. 268; 29 L. J. M. C. 171; 8 W. R. 531. 208. Roberts v. Preston, 9 C. B. N. S. 6 Allison v. State, 42 Ind. 354. 8 R. v. Hadfield, L. R. 1 C. C. 253. |