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CHAPTER XVIII.

MALICIOUS INJURY TO ANIMALS.

$193. Malicious mischief as a common-law offense.
§ 194. Malicious mischief in the United States.
§195. Actual malice, against the owner, must appear.
$196. Criminal statutes as to injury of domestic animals.
§ 197. State laws as to malicious injury of animals.
§198. Laws in Georgia as to malicious injury of animals.
§ 199. Statutes concerning malicious injury of animals.

§ 200. State laws as to damage to domestic animals.

§201. Malicious injury of animals, criminal laws.

§ 202. Laws of several States as to injury of domestic animals.

§ 203. Criminal law as to malicious injury of animals.

§ 204. Statutes as to malicious injuries to animals.

§ 205. Construction of statutes for prevention of willful injury to domestic

animals.

$206. The definition of malice.

§ 207. As to what constitutes "injury to animals."

§ 193. Malicious mischief as a common-law offense is, to all practical intents, unknown.

In England, as the several species of this class of crime became noticeable, legislative enactments were framed for public protection, and each, in turn, was specially provided against; and following the history of crime back as far as the reports go, there has scarcely been a conceivable instance in which mischievous injury to property would have been possible without contravention of a plain statutory provision.

This is especially noticeable in the matter of prevention of malicious injuries to animals; a series of statutes, twelve or more, beginning with 37 Henry VIII, Chap. 6, and ending with the "Black Act," 9 Geo. II, Chap. 22, which was passed "for the punishment of certain marauders who committed great outrages, disguised, and with faces blackened," were passed solely to prevent wanton mischief to domestic animals.

The provisions of these statutes were so minute that distinct penalties were prescribed for every conceivable offense: thus, the

cutting out of a cow, the breaking of the fore-leg of a sheep when attempting to get out of an inclosure, the wounding of cattle when the injury was only temporary.3

Something more than 1,800 sections, from the reign of Henry VIII to that of Geo. III, were enacted for the especial purpose of providing against malicious mischief, and the statutory provisions being so ample, and thus more specific and certain than the common law, the books in relation to this class of offenses give but few examples of common-law indictments.

§ 194. Malicious mischief in the United States has been the subject of frequent adjudications by the Courts, as the later English statutes do not control them; and, from the decisions of American Courts upon the topics involved, an American common law is to be deduced. In these cases, the proposition is generally maintained, that, without being obliged to rely upon special statutes, malicious mischief is a crime punishable under the law.4

Acts injurious to private persons, which tend to excite violent resentment, and thus produce a disturbance of the peace, have, in America, universally been held indictable; and it would appear that, although from the fact that the comparatively late provisions of the statute law in England have measurably superseded the common-law rules applicable to such offenses as, by their wickedness and enormity, lead to disregard of law and breaches of the peace, nothing is to be inferred against the maliciously injuring domestic animals being an offense at common law, from the circumstance that malicious mischief is punishable in England by statutes, which are there so universally re

1 Stats. 37 Henry VIII, Chap. 6; People v. Brunell, 48 How. Pr. 435. 29 Geo. I, Chap. 22, Sec. 6.

39 Geo. I, Chap. 19.

The People v. Smith, 5 Cow. 258. The defendant was indicted for maliciously, wickedly, and willfully killing a cow. The Court said: "The offense is distinguishable from an ordinary trespass in this, that it not only is a violation of private right, without color or pretense, but without the hope or expectation of gain. Such an act discovers a degree of moral turpitude dangerous to society, and, for their security, ought to be punished criminally. It is an evil example of the most pernicious tendency, inasmuch as the act is an outrage upon the feelings and principles of humanity. The direct tendency is a breach of the peace. What more likely to produce it than wantonly killing, out of mere malice, a useful animal ?" (Republica v. Teischer, 1 Dall. 355; Commonwealth v. Taylor, 5 Binn. 277; Commonwealth v. Leach, 1 Mass. 509.)

lied upon by reason of their ample provisions. The statutes there are so ancient, and the punishments provided so severe, that they have come to be habitually relied upon, and, as a matter of course, resulted in causing the common law to be lost sight of, though the statutes were doubtless intended as a mere increase of its penalties.1

Thus, it may now be regarded as the common law in America that it is an offense to kill a horse belonging to another,2 or a cow, or a steer, or any beast whatever which may be the property of another.5

§ 195. Actual malice against the owner is requisite under charge of malicious mischief by injury to animals. At common law, leaving entirely out of sight the provisions of the statutes relating to injuries to domestic animals, the offense styled "malicious mischief" has been so far ignored as to especially impose upon the complaining party the duty of alleging clearly, and fully establishing by proof, that the act complained of was the result of malice on the part of the person who committed the mischievous act against the owner of the animals injured.

The malice charged and proved, in order to obtain and sustain an indictment, must be by the wrongdoer against the owner of

1 State v. Briggs, 1 Aik. 226; Loomis v. Edgerton, 19 Wend. 419.

2 People v. Smith, 3 Cow. 258; Com: v. Leach, Ante, Sec. 194, Note 4.

& State v. Council, 1 Tenn. 305.

4 State v. Scott, 2 Dev. & Batt. 35, which was an indictment for maliciously killing a steer.

In this case, the Court held that an indictment for malicious mischief may conclude at common law; and, in such indictment, it is not necessary to charge actual malice against the owner of the property injured. (State v. Simpson, 2 Hawks, 460.)

5 Loomis v. Edgerton, 19 Wend. 419. "Malicious mischief to any kind of property is a misdemeanor, and the party doing the injury may be prosecuted criminally."

Henderson v. The Commonwealth, 8 Grattan, 708. "Though the mere breaking and entering the close of another is not a misdemeanor, yet, if the entry be attended by circumstances constituting a breach of the peace, it will become a misdemeanor for which an indictment will lie.

"The going upon the porch of another man's house, armed, and from thence shooting and killing a dog, belonging to the owner of the house, lying in the yard, in the absence of the male members of the family, and to the terror and alarm of the females in the house, is a misdemeanor for which an indictment will lie."

FARM-17.

the animals, and not merely the sudden temper which a man may feel toward the animal. It is to be regarded as property, malice against which cannot well be conceived; and hence, injuries to animals, following the general rule, to constitute an indictable offense, must be characterized by malice to the owner; and such malice will not be presumed alone from the commission of an injurious act, such as maiming or killing the animal, although proof of that act may be received as evidence of malice.1 A late decision appears to attack this position, and to take the ground that malice may be presumed from the act of injuring another's property, and that, the injury being proved, defendant must prove absence of malice; but the case stands so far isolated as to be of greater value because of the discussion which it has given rise to, than as absolute authority.2

1 Henderson v. Commonwealth, 8 Gratt. 708.

2 State v. Wheeler, 3 Vt. 347. This was an information by the State; attorney alleging "that Daniel Wheeler, of etc., on etc., one two-year-old steer, of a red color, of the value of twenty dollars, of the goods and chattels of one Ebenezer Davis, etc., in a certain field belonging to one Simeon Morse, of etc., with force and arms, feloniously and willfully, maliciously, mischievously, and wickedly, then and there did kill," it was held that a mere invasion of private property, without a disturbance of the peace, is not an indictable offense, but is a private injury only, for which an action of trespass lies; that an indictment will not be sustained for feloniously, maliciously, mischievously, and wickedly killing a beast, the property of another; and after conviction on such an indictment, the judgment should be arrested.

State v. Newby, 64 N. C. 23. To constitute malicious mischief, at common law, in injuries to property, malice toward the owner is essential. Such malice will not be inferred from a merely injurious act, such as killing the animal of another.

To kill an animal is not necessarily an offense, but is only rendered one by the special circumstances. (Northcot v. State, 43 Ala. 330; Hill v. State, Id. 335.) "The 9 Geo. I, Chap. 22, commonly called the Black Act, declares that if any person or persons, whether, etc., shall unlawfully and maliciously kill, maim, or wound any cattle, every person so offending, being lawfully convicted thereof, shall be adjudged guilty of felony, without benefit of clergy, etc. It was the settled construction of that statute that, in order to bring an offender within its provisions, malice must be directed against the owner of the cattle, and not merely against the animal itself." (2 East's Crown L. 1072-4; The State . Pierce, 7 Ala. 730, Collier, C. J., arguendo.)

"What constitutes malicious injury to property, whether at common law or under the statutes, has been the subject of many decisions. In Reg. v. Welch, L. J. R. (N. S.) 753, the prisoner, by a reckless and cruel act, caused the death of a mare. The jury found that he did not intend to maim, wound, or kill the animal; but he knew that what he did would or might kill, wound, or maim her, and that he nevertheless did the act recklessly, and not caring whether the mare was injured or not. Held, that there was sufficient malice to support a convietion. There was no evidence to show that the prisoner was actuated by any ill

§ 196. Statutes making it a crime to maliciously injure domestic animals.-The common law is not, by any means, the sole reliance of the people of the United States as a protection against, and a means of punishment for, this species of crime the peculiar annoyances liable to be suffered from the inroads of domestic animals, the facility and comparative safety from detection with which an injury committed by them may be avenged upon the beasts, the ready means at hand to visit malice against the owner of the animals by injury to his stock, have been found to be sources of temptation to crime, of such a character as to demand special legislative enactment upon the subject; so that, in addition to the common-law remedies and provisions against crime of this nature, the several States have guarded against it by statute laws upon their respective criminal codes, providing punishments more or less severe, as the exigencies of States, the character and business pursuits of the people, or the importance of the subject, appeared to require.

§ 197. State laws as to malicious injury to animals.— The penal code of Alabama provides that "any person who unlawfully and maliciously kills, disables, disfigures, destroys, or injures any animal, the property of another, must, on conviction, be fined not less than twenty nor more than five hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county for not more than six months."

will toward the owner of the animal, nor by any spite toward the animal herself, nor by any motive except the gratification of his depraved tastes. The statutes relating to malicious injury to property in England and Ireland have been consolidated in the Act of 24 and 25 Vic. Chap. 97. The American statutes vary somewhat in terms, but are, in the main, based on the English statutes. The common-law doctrine was that the malice must be against the owner of the property, and it was not sufficient that there should be ill mind toward the animal itself. (Rex v. Pearce, 1 Leach, [4th Ed.] 527; 2 East's P. C. 1072.) Bishop remarks that 'where the indictment is at common law, the American doctrine appears to be that there must be a particular malice against the owner; but where the indictment is drawn on a statute, the question depends partly on the particular language of the statute, and partly on the differing views of the different judges.' (Bishop on Stat. Crimes, Sec. 435.) The case of Reg. v. Welch, Supra, seems to carry the doctrine of malice in injury to property to the utmost extent. According to Reg. v. Welch, where an act is reckless and cruel, and likely to result in injury, it is malicious, without intent to kill, maim, or wound." (A. L. J. Feb. 26th, 1876, pp. 140-1.)

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