Johnson v. State

61 Ala. 9 | Ala. | 1878

STONE, J.

Section 4417 of the Code of 1876 converts into crimes certain acts which, at common law, were mere civil trespasses. It is divided into two classes. The one consists in wilfully and maliciously committing a trespass on the lands of another, “ by cutting down or destroying any Avood or timber groAving thereon, or by severing from the freehold any produce thereof, or any property or thing thereto attached.” It avíII bo observed that this offense, the other ingredients being present, is complete, Avithout the asportavit. The controlling Avords are wilfully and maliciously. No matter how inexcusable the trespass, the criminal offense is not made out, unless the act is Avilfully and maliciously done. Wilfully is a strong Avord, much stronger than the Avord intentionally. — See Mitchell v. The State, 60 Ala. 26. It means, governed by the Avill, obstinate, perverse. Maliciously, in this sentence, is still more significant and controlling. It means, Avith ill-Avill, malevolence, grudge, spite, Avicked intention, enmity. And this ill-Avill can not exist Avithout an object. It must be aimed at some one; and assimilating this offense to malicious mischief, which it very much resembles, we hold the malice the culprit entertains must be directed to the OAvner of the premises. — Northcott v. The State, 43 Ala. 330; State v. Price, 7 Ala. 728; Johnson v. The State, 37 Ala. 457. We think this clause of the statute AA-as intended to enlarge the provisions of the criminal laAV against malicious mischief, so as to make them embrace groAving timber and other products of the soil, and other things attached to, and part of the freehold, as Avell as certain enumerated chattels. Hence, any person-vvho wilfully and maliciously cuts dotvn or destroys groAving timber on another’s land or freehold, or severs any produce thereof, or property or thing thereto attached, is guilty of the offense, Avithout any reference to the gain oi; profit to accrue to the offender. His purpose may have been destruction of the property. It is the malice or ill-will of the deed, Avhich constitutes the criminality.

The second branch of the statute enlarges the operation of the statutes made for the suppression of larceny. This offense, at common law, could only be committed by feloniously taking and carrying aAvay the personal goods of another. Any thing attached to, and thus part of the freehold, could not be its subject, unless it had been first severed, and afterAvards feloniously taken and carried aAvay. Under this statutc, “any person who severs and carries away from the freehold, any property or thing thereto attached, under such circumstances as would render the trespass a larceny, if the thing severed and carried away personal property,” is guilty of the public offense it denounces. Felonious intent is a fundamental inquiry under this branch of the statute, while malice is not an ingredient of the offense. The first branch of the section intends to prevent the destruction or injury of the property described, when done from ill-will or malice to the owner; the latter branch intends to punish and prevent the severing and carrying away such property, when done feloniously, at causa lucri. The particular intent which characterizes the one offense, is entirely unlike that which distinguishes the other.

The indictment in the present case contains only one count, and one specification of offense, to-wit: that the defendant “ wilfully and maliciously trespassed on the lands of "VV. R. W. by cutting down or destroying a quantity of wood or timber at the time growing thereon.” IVe have shown above that to constitute this offense, there must be malice against the owner. Several of the rulings of the City Court are not reconcilable with these views.

Revei’sed and remanded. Let the prisoner remain in custody until discharged by due course of law.