130 Mo. App. 348 | Mo. Ct. App. | 1908
An information in two counts was filed against this defendant, of which the first charged that he “unlawfully, maliciously and cruelly did maim, wound and torture to death” three hogs belonging to J. N. Taylor, by worrying said three hogs with dogs and by striking and heating and wounding to death the said three hogs with some blunt instrument of an unknown description, from the effect of which striking, heating and wounding, the hogs died. In the second count the defendant is charged, in substantially the same words, with maiming, wounding and torturing.
The principal assignment of error relates to the rejection of certain offers of proof made by defendant in the lower court and the treatment of malice as an element of the offense in instructing the jury. Defendant offered to prove the hogs were breachy and at different times for weeks prior to the killing, had ravaged his crops; that he proposed to buy the hogs from Taylor, their owner, requested the latter to pen them, offering to buy the feed required to keep them in a pen, or to pen and feed them himself while his crops were growing, and after the killing offered to pay for them, but the owner rejected all his proposals. Besides excluding proof of these facts, the court, at
“The appropriate place for these words is. in criminal pleading, where they are established too firmly to be uprooted. They (i. e., the words “wilful” and “malicious”) are too vague to be often employed in any treatment of the law itself, except by one with no distinct ideas to convey, or wishing to appear learned when he is not. Naturally, therefor, they are frequently*355 found in statutes.” [1 Bishop, Crim. Law, p. 2, sec. 427.]”
Malice when defined as the intentional doing of a wrongful act, has been said to mean not only that the perpetrator intended to do the act, but that he knew it was wrongful when he' did it, and that this is the meaning it bears in cases of homicide. Further, that if one intentionally does a wrongful act, knowing at the time it is wrongful, he does it wantonly, that is to say, cause-lessly, without restraint, in reckless disregard of the rights of others, from an evil spirit and bad motive; since good will or spirit does not impel the commission of wilful wrong. [Trauerman v. Lippincott, 39 Mo. App. loc. cit. 488.] The Supreme Court has said “malice is a condition of the mind, the existence of which is inferred from acts committed or words spoken. It is that condition of the mind which “shows a heart regardless of a social duty and bent on mischief.” [State v. Wieners, 68 Mo. loc. cit. 20.] The statute in hand requires the injury to be done wilfully as well as maliciously — willfully is a word generally construed to mean intentionally instead of accidentally. [State v. Ellis, loc. cit. 214.] But occasionally, in the very class of offenses we are dealing with and in others, it carries the idea of evil intent. [1 Bishop, Crim. Law (8 Ed.), sec. 428; 12 Crim. Law Mag., 392; Thomas v. State, 14 Tex. App. 200; Lumber Co. v. Doyle, 71 Conn. loc. cit. 742.] Bishop comments as follows on the general question of malice in cases like this:
“On an indictment for stabbing a mare, the jury found specially that the defendant Took the mare from his corn field, where she was damaging his growing corn, to a secret part of the country, where he inflicted the wound, with a view to prevent a repetition of the injury,’ and it was held that this did not constitute malicious mischief.' The judge said that the wrong, to be such, must be ‘done in a spirit of wanton malignity,*356 without provocation or excuse, and under circumstances which bespeak a mind prompt and disposed to the commission of mischief.’- Possibly these terms are a little-emphatic; but whether so or not, it is doubtless sufficiently settled that one does not commit this offense by a mere wrongful act done for the protection of his own property.” [1 Bishop, Crim. Law, par. 2, sec. 996.]
In view of the language of our statutes and of the exposition of the subject in the books, we think the words “wilfully and maliciously” signify that the offense occurs when a domestic quadruped is maimed, beaten or tortured from an evil impulse, springing from a state of mind which renders the perpetrator indifferent to the sufferings of the animal and the wrongful quality of the act; but not springing necessarily from spite toward the owner or the animal itself. On the whole the following cases support this opinion, though they are to be read cautiously and with reference , to the laws the various defendants were accused of violating. [State v. Bogardus, 4 Mo. App. 215; State v. Roche, 37 Mo. App. 480; State v. Crenshaw, 22 Mo. 453; State v. Graham, 46 Mo. 490; State v. Landreth, 12 Caro. Law Rep. 329; State v. Avery, 44 N. H. 392; Commonwealth v. Walden, 3 Cush. (Mass.) 558; Id. v. Williams, 110 Mass. 408; Hunt v. State, 3 Ind. App. 383; Duncan v. State, 49 Miss. 331; Stephens v. State, 65 Miss. 329; Grise v. State, 37 Ark. 456; State v. Foote, 71 Conn. 737; Dawson v. State, 52 Ind. 478; Brown v. State, 26 Ohio St. 176; Moseley v. State, 28 Ga. 190; Wright v. State, 30 Ga. 325; Branch v. State, 41 Tex. 622; Lott v. State, 9 Tex. App. 206; Reedy v. State, 22 Tex. App. 271.]
Our next inquiry relates to what evidence is competent in a case like this, as tending to prove the injury to the animal was wilfully and maliciously inflicted. Or, to state the question more aptly as regards the point for decision: Was it competent to prove the
After excluding the testimony, we are discussing, the trial court commented on it in an instruction to the jury telling them that such conduct on the part of defendant was no defense. As the evidence was not before the jury, this -instruction was improper. [McKinzie v. Hill, 51 Mo. 303.]
The judgment is reversed and the cause remanded.