206 P. 373 | Wyo. | 1922
The defendant below, Orrin G-. Wiggin, was tried and convicted of wilfully and maliciously killing a head of neat cattle, contrary to the provisions of Section 7123 of the Wyoming Compiled Statutes 1920 reading as follows:
“Whoever wilfully and maliciously kills any horse, mule, sheep, goat, or neat cattle, the same being the property of another, shall be deemed guilty of a felony, and upon conviction thereof shall be imprisoned in the penitentiary for not more than fourteen years. ’ ’
The defendant was sentenced to from 3 to 6 years in the penitentiary, and the case has been advanced for hearing on account of the showing that the defendant has, since his conviction in February, 1921, been incarcerated therein.
1. The defendant asked an instruction to the effect that the jury must find that the killing of the animal was done through malice, hatred or ill will toward George and Henry Frederick, or that the killing was so cruel that malice could be inferred therefrom. Other similar instructions were asked. All these were refused and error is alleged by reason thereof. The court gave, on this subject, over the objection of the defendant, the following instruction:
“You are instructed that malice includes not only anger, hatred and revenge; but every other unlawful and unjustifiable motive. Malice is not confined to ill-will toward an individual, but is intended to-denote an action flowing from any wicked and corrupt motive, a thing done with a wicked mind, where the fact has been attended with such circumstances as evince plain indications of a heart regardless of social duty, and fatally bent on mischief; hence malice may be implied or inferred from any deliberate and cruel act against another, or his property, which shows an abandoned and malignant heart.”
The case of State v. Johnson, 7 Wyo. 512, 54 Pac. 502, is a case involving malicious mischief, and the court in
“The authorities are nevertheless substantially agreed that the malice necessary to constitute the offense is something more than the malice which is ordinarily inferred from the wilful doing of an unlawful act without excuse. The statutes were not intended to make every wilful and wrongful act punishable as a crime, but they are devised to reach that class of eases where the act is done with a deliberate intention to injure. * * * And it seems to be generally held that in order to bring an offense under the head of malicious mischief it must appear that the mischief was itself the object of the act, and not that it was incidental to some other act lawful or unlawful. ’ ’
The principle laid down in that case that the malice in such eases is something more than what is ordinarily understood as legal malice, but is that malice as it is more ordinarily understood in common speech, has been the settled rule of law in this state since 1898, and we see no reason for departing therefrom. Statutes punishing injury or destruction of animals have practically uniformly been construed as in affirmation or enlargement of the common law on malicious mischief, and we see no good reason for construing our statutes differently. We think that the history of the legislation in this state on the subject of killing animals clearly shows that the malice referred to in Section 7123 was intended to mean more than the mere wilful doing of an unlawful act without excuse. The authorities are substantially agreed that the malice essential for conviction is not malice directed toward the animal injured or destroyed, and particularly is that true in our state in view of the statute punishing cruelty to animals. Nor do we think that it was in contemplation of the legislature to make a case where a person is guilty of larceny of an animal at the same time a ease of malicious and wilful killing an animal, simply because the animal was killed. The killing must be wilful and malicious in order to' convict under
“It will be observed that this offense, the other ingredients being present, is complete, without the asportavit. The controlling words are wilfully and maliciously. No matter how inexcusable the trespass, the criminal offense is not made out, unless the act is wilfully and maliciously done. "Wilfully is a strong word, much stronger than the word intentionally. (See Mitchell v. The State, 60 Ala. 26.) It means governed by the will, obstinate, perverse. Maliciously, in this sentence, is still more significant and controlling. It means with ill will, malevolence, spite, wicked intention, enmity. And this ill will cannot exist without an object. It must be aimed at some one; and assimilating this offense to malicious mischief, which it very much resembles, we hold the malice the culprit entertains must be directed to the owner of the premises.”
It is undoubtedly true that, by the great weight of authority, the malice in such eases must be directed against the owner or possessor of the property injured or destroyed. We shall cite only a part of the authorities: 3 C. J. 166; 19 Am. & Eng. Ency. of Law, 641; Hobson v. State, 44 Ala. 380; Chappell v. State, 35 Ark. 345; People v. Jones, 241 Ill. 482, 89 N. E. 752, 16 Ann. Cas. 332; State v. Leslie, 138 Iowa 104, 115 N. W. 897. U. S. v. Gideon, 1 Minn. 292; State v. Beckman, 27 N. J. L. 124, 72 A. D. 352; State v. Newby, 64 N. C. 23; State v. Miner, 17 N. D. 457; 117 N. W. 528, 19 L. R. A. N. S. 273; Com. v. Shaffer, 32 Pa. Super. Ct. 376; State v. Wilcox, 3 Yerg. 278 (Tenn.), 24 A. D. 569; Newton v. State, 3 Tex. App. 245; State v. Muzzy, 87 Vt. 267, 88 Atl. 895; Town of Fletcher v. Kezer, 73 Vt. 70, 50 Atl. 558; State v. Barry, 43 S. D. 85; 177 N.
“In order to constitute the offense of malicious mischief under this statute, it is not enough to prove a spirit of cruelty toward the animal. The malice must be directed against some person, ordinarily the owner of the animal, but it need not be shown that the offender actually knew the owner. It will be sufficient to show that he was bent on mischief against the owner, whosoever he might happen to be. * * * But it is not necessary, in order to prove malice within this rule, to show that the defendant ever said or did anything to indicate malice against the owner. Malice may be, and frequently must be, inferred'from the nature of the act itself and from the circumstances which accompany and characterize it. The inference is not one of law for the court, but one of fact for the jury. ’ ’
The defendant in this case was entitled to an instruction clearly stating the rule on this subject. Tested by what we have said, it is clear that instruction No. 8 of the court, the only instruction on that subject given, did not do so. Without attempting to analyze it in detail, it fails
2. There was introduced in evidence a certified copy of the SEO brand, supposedly .on the animal killed by the .defendant, and which brand was shown to be owned by George and Henry Frederick. It was also shown, inferentially at least, though the evidence is not strong, that the owners of the brand owned animals of that brand, and that they never sold any animals to the defendant. It seems that the animal in question was well marked and readily known, and counsel for defendant seem to contend that in view of the fact that the owners of the brand were witnesses in the case, they should have been able to testify
3. Before the arrest of the defendant an affidavit was filed before a justice of the peace charging that one head of neat cattle, branded SEO on left side belonging to said Henry Frederick and George Frederick of the value of $100 had been by some person feloniously taken and carried away, and “that the said goods and chattels, as complainant verily believes are concealed by one Orrin Or. Wiggin, he knowing the same to have been stolen * * * and this complainant says that he verily believes that Orrin C. Wiggin is guilty of the above fact charged,” and that he conceals the same at his cellar, barn, etc., at Lingle in said county. A warrant was thereupon issued by said justice, which directed both the arrest of the defendant, as well as the search of the premises described in the complaint. It appears that the defendant was accordingly arrested and a hide with the brand cut out and four quarters of beef seized and brought before the justice. Thereupon a criminal complaint was filed charging the defendant with lar
“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.”
And there is further involved here Sec. 11 of Article I of our constitution providing that “no person shall be compelled to testify against himself in any criminal case.” There is no showing in the foregoing affidavit for search and seizure'of any probable cause, and it was made upon the belief of the affiant. That kind of affidavit was condemned by this court in the case of State v. Peterson, 27 Wyo. 185, 194 Pac. 342, 13 A. L. R. 1284. The ruling in that case is sustained, we think,' unanimously by all the courts in this country, and we do not wish to depart therefrom. The United States Supreme Court in the recent case of Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647, speaking of the constitutional provisions corresponding to those cited above, and speaking of the decisions thereon, says:
“The effect of the decisions cited is: That such rights are declared to be indispensable to the ‘full enjoyment of personal security, personal liberty and private property;’ that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the*491 other fundamental rights of the individual citizen — the right to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous, executive officers.”
While fully adhering to and concurring in the foregoing views, there is involved in this case another principle which has not been argued by either side. The affidavit in this case not only prayed for search and seizure, but it also charged the defendant with a felony, that of concealing stolen goods with knowledge that they were stolen, and the warrant issued thereon, and pursuant to which the hide was taken, not only authorized seizure and search, but also commanded the sheriff to arrest the defendant. Though, therefore, the warrant as a warrant for search and seizure was invalid, the question still remains as to what right the sheriff had pursuant to the command to arrest the defendant. Sec. 4 of Article I of our Constitution must necessarily be construed in the light of the immemorial usages in connection with the rightful arrest of a defendant. In such eases the right of seizure of certain property is incidental to the right of arrest. (North v. People, 139 Ill. 81, 28 N. E. 966.) It is not altogether clear from the authorities as to the extent to which the usage mentioned has prevailed and is fully recognized. The law is well settled that an officer has the right to search the party arrested and take from his person and from his possession property reasonably believed to be connected with the crime, and the fruits, means or evidences thereof, and he may take and hold them to be disposed of as the court directs. (Bishop Crim. Proc. § 211; Wharton Crim. Proc., Vol. 1, See. 97. 5 C. J. 434. Weeks v. United States, 232 U. S. 383, 392, 58 L. Ed. 652. Note L. R. A. (N. S.) 1916 C., p. 1017.) In United States v. Mills, 185 Fed. 318, the court said:
*492 “From time immemorial an officer making a lawful arrest on a.criminal charge has taken into his possession the instruments of the crime and such other articles as may reasonably be of use as evidence on the trial. A blood-stained knife or garment, a half emptied phial of poison, a mask or disguise,- counterfeit coins, plates for printing counterfeit notes, gambling devices, stolen property, and many other articles axe thus seized every day on the person or the premises of the alleged criminal, and no one disputes the propriety of such seizure. ’ ’
What is meant by “possession” of defendant in this connection, is not entirely clear. There is no doubt whatever under the authorities, that if the property of the kind mentioned above is in the immediate possession of the defendant, it may, after lawful arrest of the defendant, be seized. Thus not alone what a defendant has on his person, but also his handbags, sacks and other things that he carries about with him, if of evidentiary value, may be thus seized. (Turner v. Com., 191 Ky. 825, 231 S. W. 519; Com. v. Riley, (Ky.) 232 S. W. 630; Youman v. Com., 189 Ky. 152, 224 S. W. 860, 13 A. L. R. 1303.) Nor can there be any doubt that where property of that character is, at a place to which lawful access has been obtained, visible to the officer, ready to be taken, that he may, upon the lawful arrest of the defendant, seize and take it into his possession. (State v. Mausert, (N. J.) 95 Atl. 991, L. R. A. (N. S.) 1915 C. 1014; State v. Quinn, 111 S. C. 174, 97 S. E. 62, 3 A. L. R. 1500; State v. Rogne, 115 Minn. 204, 132 N. W. 5; Com. v. Riley, supra. Banks v. Com., 190 Ky. 330, 227 S. W. 455; Herine v. U. S., 276 Fed. 806.) In Collins v. Lean, 68 Cal. 284, 9 Pac. 173, it was held that a search warrant authorizing the search of the person further authorized the picking up of lottery tickets found under a counter, for which no particular search was necessary. There are cases which go further. The recent leading case is Smith v. Jerome, 47 Misc. Rep. 22, 93 N. Y. S. 202, 16 N. Y. Ann. Cas. 153. In that case the court said:
*493 ‘ ‘ The police -have the power and it is also their duty to search the person, of one lawfully arrested, and also the room or place in which he is arrested, and also any other place to which they can get lawful access, for articles that may be used in evidence to prove the charge on which he is arrested. We have no statute defining this power or prescribing this duty, but the ends of justice require that they should exist, and they have been exercised under the common law from time immemorial. The authorities on this head seem to be few, but only because the thing has seldom if ever been questioned. ’ ’
In People v. Kalnin, 189 N. Y. S. 359, decided in June, 1921, the court said:
“The law is well settled in the state of New York, that the police have the power, and it is their duty, to search the person arrested and the place in which he is arrested, without a warrant for making such search.”
The court cites the case of Smith v. Jerome, supra. The latter ease has been cited with approval in other cases* People v. Cons, (1914) 180 Mich. 641, 147 N. W. 525, where the court permitted to be shown that two revolvers were found in drawers of the room wliere defendant was arrested; United States v. Wilson, 163 Fed. 338, where a trunk check found upon the person of defendant was held properly usuable for the purpose of obtaining from the Railroad Company the trunk and its contents., In Banks v. Farwell, 21 Pick. 156, decided in 1838, it was held under a statute which largely expresses only the common law rule of the right of the arresting officer, that no search may be made by an officer arresting a defendant, by breaking open a house or shop; but that if the prisoner tells the officer where stolen property is, that it is not alone the right but also the duty of the latter to seize the property, and do so, if necessary, by force. (See also Houghton v. Bachman, 47 Barbour, (N. Y.) 388.) It is not necessary for us to decide the point involved in the cases last cited, but we have mentioned them to show the extent to which some of the courts have gone. The point is not now directly be
In the case at bar the property seized was claimed as stolen property. It appears, though not altogether from the proof that was before the court upon the motion to suppress the evidence, that the defendant was arrested, but whether at or about the time of the seizure, or on the same or a subsequent day is not shown. The sheriff, it seems, informed the defendant that he had a search warrant and wanted the hide in question. The defendant answered “all right” and took the sheriff to the place where the hide was, opened it and showed it to him. Counsel for defendant claim that the seizure was made under coercion; that the possession of the search-warrant, of which defendant was informed, itself shows that the action of the defendant was not voluntary. A search made pursuant to an admission gained unlawfully by stealth, force or coercion is illegal, and it has been held that coercion is implied when the officer displays his badge or shows an illegal warrant and thus obtains the acquiescence for admission. (United States v. Slusser, 270 Fed. 818; In Re Tri-State Coal Co., 253 Fed. 605; Gouled v. United States, supra; Amos v. United States, 255 U. S. 313; 41 Sup. Ct. 266, 65 L. Ed. 654.) We do not, however, believe that an officer should be prohibited from asking a prisoner where stolen or other property is, and information thus gained may be used, at least if that can be done without force or stealth. We think it clear, too, that an officer may, pursuant to a lawful arrest,
The case is Reversed for the error in the instruction upon the question of malice, and is remanded to the lower court for a new trial.
Reversed and remanded.