State v. Enslow

| Iowa | Dec 6, 1859

Wright, C. J.

— The language of the indictment is, that the said defendant did, on &c.,at &c., one sow of the value of ten dollars, of the goods, chattels and property of &c., then and there &c., unlawfully, wantonly, maliciously and mischievously kill, &c. It is objected that the pleader should have averred that the sow was a domestic beast. The section of the Code under which the indictment was found (2678) provides that “if any person maliciously kill, maim, or disfigure any horse, cattle or other domestic beast of another; or maliciously administer poison to any such animal, &c.”

We think the demurrer was correctly overruled. This manner of pleading is sustained by the following authorities: 3 Chit. Cr. L. 1087, 2 Russell on Cr. 489, and notes. The act of 9 Geo. 1 (Black Act) punished the malicious killing, &c., of any cattle. Under this language it was held unnecessary to aver that the animals killed or wounded were cattle, in order to bring them within the statute; 2 Bla. Rep. 721, 733. And pigs were held to be cattle within the act. Rex. v. Chapple, Mich. T. 1804, and Russ, and Ry. 47, and see Wharton Cr. L. 377, notes C, D, E and E, 2 East. P. C. 1076.

The court instructed the jury, that to convict they must find that the defendant had malice express or implied against the owner of tbe property; that the mere destruction of property without proof of malice toward the owner, will not sustain the charge; that malice might be inferred or implied from the act and manner of killing, and other circumstances connected with tho offense, such as the relation existing between the defendant and the owner, the killing without good or probable cause and the like. It is objected that the language of this instruction, “that'malice might be inferred or implied from the act or manner of hilling,” leaves out of view the essential of malice toward the owner. If it be granted, that malice against the owner must be shown, we do not understand these instructions to assert any contrary doctrine. Indeed we think it quite manifest that the jury must have clearly understood that malice toward the owner was necessary in order to constitute the offense. And the language complained of, however objectionable it might be if standing by itself, is relieved of all possible objection, even according to this claim of defendant, when taken in connection with the qualifying and explanatory words following. These clearly keep up the idea that malice towards the owner and not mere wantonness in the destruction of the animal, was essential to justify a conviction.

Judgment affirmed.