119 Tenn. 521 | Tenn. | 1907
delivered the opinion of the Court.
The indictment in this case charged that the plaintiff in error “on the-day of April, 1906, and on divers other days prior to that date, and up to the finding of this indictment, in the State and county aforesaid, did unlawfully, knowingly, willfully, and feloniously cut and remove from said tract of land” (previously described in the indictment) “timber growing upon said
This indictment was based on chapter 106, p. 257, of the Acts of 1897. That act provides that it shall be a felony for any one to “knowingly, willfully, and maliciously cut or to remove, for the purpose of marketing the same, timber from the lands of another, without the consent of the owner of the timber so cut or removed.”
By chapter 381, p. 889, of the Acts of 1899, an effort was made to amend the foregoing statute by striking out the words “and maliciously;” but this latter act is vdd, because it violates article 2, section 17, of the constitution, since it does not recite in its caption or otherwise the title or substance of the law sought to be amended. Memphis Street Ry. Co. v. State, 110 Tenn., 598, 75 S. W., 730.
In the court below the indictment in the present case was quashed because it omitted the word “maliciously,” and substituted therefor the word “feloniously.” The question to be determined is whether the substituted word supplied the place of the word omitted.
It is always best to pursue the words of the statute; but where a word not in the statute is substituted for one that is, and the word thus substituted is equivalent to the word used in the statute, or is of more extensive
In order to a correct determination of the question ■whether the word “feloniously” was a proper substitution for the word “maliciously” in the statute referred to, it is necessary that we construe all three of the significant words defining the offense, and ascertain the meaning of the word “maliciously” in the connection in which it stands.
The word “knowingly” has been construed by this court as being that state of mind wherein the person charged was in possession of facts under which he was aware he could not lawfully do the act whereof he was charged; knowledge of the law being necessarily imputed to him, as in all criminal cases. This was held in a case wherein the party was indicted for illegal voting under a statute which provided that “any person who shall knowingly vote at any election, not being at the time a qualified voter in the county in which .he so votes, shall be adjudged guilty of a misdemeanor,” etc. McGuire v. State, 7 Humph., 54. “Willfully”, means intentionally; that is, that the person doing the act intended at the time to perform that act. The word “maliciously,” in the connection in which it appears, is used in the broad, legal sense, of criminal intention, or that state of mind of a person who does a wrongful act intentionally or willfully, and without legal justification or excuse. The three terms taken together contemplate a
“Feloniously” is. definéd in the Century Dictionary as follows: “With deliberate intent to commit a wrongful act, the act being in law such as constitutes a crime of the class termed felonies.” In Webster’s International Dictionary one meaning attached to the word is r “In a legal sense, done with the intent to commit a. crime.”
In comparing the judicial definitions of the words “felonious” and “feloniously” in Words & Phrases Judicially Defined, vol. 3, p. 2731 et seq., with the judicial definitions of the word “malicious” in volume 5 of the same work, at page 4307, it is found that these words are often construed to have the same meaning, viz: “with, criminal intent,” or “with intent to commit a crime.”
In Young v. Commonwealth, 12 Bush (Ky.), 243, and in Aikman v. Commonwealth, 18 S.W., 937, 13 Ky. Law Rep., 894, it is held that the word “feloniously” includes “maliciously and unlawfully.”
In Shotwell v. State, 43 Ark., 347, it was held that where the word “maliciously” was used in a statute providing punishment for burglary, in charging the offense the use of the words “feloniously, willfully, and burglariously,” instead of “willfully and maliciously,” was sufficient, as by the use of the word “maliciously”
In Pennsylvania it is held that the word “feloniously” includes “maliciously.” Commonwealth v. Carson, 166 Pa., 183, 30 Atl., 985. And in Whitman v. State, 17 Neb., 224, 22 N. W., 459, it was held that “maliciously”' is included in the Avords “unlawfully, willfully, purposely, and feloniously.”
On the grounds stated, we are of the opinion that the substitution of the word “feloniously” for the word. “maliciously” in the indictment under examination was sufficient, and the circuit judge erred in quashing the indictment.
The judgment Avill therefore he reversed, and the cause remanded for issue and trial.