7 Ala. 728 | Ala. | 1845
— It is enacted by the fifth section of the fourth chapter of the Penal Code, that “If any person shall unlawfully, wilfully, and maliciously kill, or disable, any horse, mare, or gelding, colt or filly, ass or mule, or any goat, sheep, or cattle, or any hog or live stock, of any kind or description whatever, belonging to any other person ; or shall,” &c. “ every person so offending, shall, on conviction of any of the aforesaid offences, be fined in a sum equal to five fold the value of the property injured or destroyed,” &c. The seventh section of the same chapter provides, that “the fines imposed in the three last preceding sections, for the offences therein mentioned, shall be paid to the party injured.” [Clay’s Dig. 417-8.]
The 9 Geo. 1, ch. 22, commonly called the Black Act, declares, “ If any person or persons, whether, &o., shall unlawfully and maliciously kill, maim, or wound, any cattle, or shall, &e. every person so offending, being lawfully convicted thereof, shall be adjudged guilty of felony without benefit of clergy/’ &c. 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 Easts Crown L. 1072-4.] In Shepherd’s case, 2 Leach’s C. L. 609, it was held, that proof of dislike to a particular horse, and the mischief committed after the master’s refusal to let him have another, was not sufficient to bring the case within the Black Act; though the prisoner had before threatened the injury, if his master would not let him have the other horse.
' So it has been determined that an indictment at the common law, would not lie for unlawfully, and with force and arms, maiming a horse, to the great damage of his owner, and against the peace. Such charge, it was adjudged, only imported a trespass — the words vi et armis not implying sufficient force to support an indictment. [2 East’s C. Law, 1074.J
It results from this view, that the indictment is defective, and the ruling of the Court was not in harmony with the law. The judgment of the Circuit Court is therefore reversed, and the defendant will appear at its next term, and answer such further charge, (if any,) as may be made against him; unless he shall be otherwise legally discharged.