State v. Briggs

| Vt. | Jan 15, 1826

Hutchinson J.

delivered the opinion of the Court.

Two questions are presented by the record in this case, for the Court to determine.

The first appears upon the bill of exceptions and motion for a new trial, which is, whether the testimony offered and admitted by the Court, ought to have been excluded on account of its being variant from the indictment. Both the indictment and testimony agree in the description of the colts: also in this, that the colts were confined in the barn-yard of the respondent, and that in Benson ; also in this, that the scythes were placed upon the bars of this same barn-yard, and the colts driven over and wounded. But the indictment charges that this bar-way led from said barn-yard towards and into the meadow or enclosure of Darfee, and the testimony was, that the said bar-way led to the meadow of Briggs, and there was no testimony tending to prove that any bar-way led to the meadow or enclosure of Durfee. If there had been proof that there were two bar-ways to the enclosure, one leading to the meadow of Briggs, and one to that of Durfee, and the indictment placed the scythes at one, and the evidence placed them at the'other, there would have been more semblance of materiality in the variance; so, if the barn-yard had proved to belong to a different man than the one charged. The Court consider the gist of the offence to be the confining the colts irv the defendant’s barn-yard, and placing scythes in the bar-way, and driving over and wounding the colts, and all this maliciously, &c. as charged in the indictment: at what side of the barn-yard, or at what bar-way, is wholly immaterial. If an indictment charge the breaking and entering the house of A. B. at the south door thereof, and then assaulting a person, and the proof is, that the defendant broke the house of C. D. it would be a variance. But if the proof be that he broke the house of A. B. at the west door, and not at the south door, as charged, it is well enough, and no variance. So, if an indictment charge that A. gave B. a mortal wound, and C., D. and E. were present, aiding and abettingj proof that C. gave the mortal wound, and A. D. and E, were present, aiding and abetting, supports the indictment, for the material charge is, that they all joined in killing B. But proof of the killing a different person instead of B. would not support the indictment. The motion for a new trial cannot avail the defendant.

The motion in arrest presents the question, whether such an injury to the brutes, inflicted in the manner charged, and found by the jury, is an offence at common law, or only a civil injury.

It is urged, on the part of the respondent, that n6 such indictments are to be found in England; also, that the statutes in England would not probably have been enacted, if the act were an offence at common law ; while the attorney for the state contends, that these ancient statutes acquiesced in, have the effect of, and even become common law,

We cannot treat those statutes as common law, nor as in force here. Nor does the existence of these statutes prove that the acts to which they annex penalties, were not offences at common law. Their penalties are so severe, that their existence rather proves that the punishments of the common law were too mild to prevent the commitment of the offences, or at least, that they were so considered. And these statutes are so ancient, that it is not strange that the reports contain no prosecutions at common law for like offences; for, after the statutes existed, they would be apt to indict under the statutes.

Jonas Clark, attorney for the state. Chamice^ Langdon and Chs. K. Williams, for the respondent.

One case is slated to have been decided in this Court, in this county, in the year 1807, wholly in point. The case is not controverted; but its weight is denied on the ground, that the respondent’s counsel, by some mistake, did not arrive, so as to be heard upon tlie question of law. The Court consider this case as of some weight, especially as the legislature have not interfered to enact a counter law. Yet it deserves much less weight, than if decided upon argument.

The Court are inclined to support the indictment. It contains all the epithets in our language, as it were, showing the wickedness, malice and cruelty with which the deed was perpetrated. The case of the King against Higgins, 2 East's R. 5 to 21, is in point, to show that the common law treats as a misdemeanor every attempt to commit a crime, though it does not succeed; as the master’s soliciting his servant to steal, though he does it not.

The authorities cited on the part of the respondent, are strong to show, that a trespass to the property of another is a civil injury, and not the subject of an indictment. It seems probable that those authorities are intended to comprise those cases where the injury sustained by the owner of the property, is the matter complained of. That is clearly the case in 2 East's P. C. 1074, Ranger's case. The charge is in the language of a civil injury merely. “That the defendant, with force and arms, maimed the gelding.” When the most wanton cruelty to the beast is the gravamen, we may pass by the civil injury, and treat the deed as a misdemeanor at common law. With force and arms, to injure the property of another, is a civil injury, for which the owner of the property may have his remedy, by action of trespass. But the wounding and torturing a living animal, not only with force and arms, but with all the wicked and malicious motives and intentions, set forth in this indictment, is a misdemeanor to be punished by the judges.

The respondent takes nothing by his motion in arrest.

Briggs, the respondent, being called to receive the sentence of the Court, declined appearing, and the forfeiture of his bonds was taken.