[indorsement]

Sup. Court 4th Cir. Jany ’42

People vs. Harger et al

Indict—

Mo. in arrest of Judg*

Mem0 of opinion—

*105[opinion]

The People vs. Harger et al

This case was tried at the last term of the Circuit Court of Oakland Co., a verdict of guilty was found against the Defts — and a motion was made in arrest of judg1, and .the questions arising on that motion were reserved and certified to this Court by the Presiding Judge of that Circuit.

The Defts 'were indicted for wilfully and maliciously killing certain hogs — and on the trial were found guilty—

A motion in arrest of judg1 was made, on the ground that each of the 2 Counts in the Indict1 embraces two distinct offences—

The first Count of the Indie1 alleges that the Defts “did wilfully and maliciously kill 25 barrow hogs of the value of $Ao each, three sows of the value of $20 each, the Beasts of one Phineas Davis, and did thereby then and there wilfully and maliciously destroy the personal property of him the said Phineas Davis, against the Peace,” &c

The 2d Count is precisely like the first except that it alleges the property to be the property of N. T. Ludden and Alanson Shuley.—

The counsel for the Defts contend that two distinct offences are charged in each count — the charge of killing the hogs, as one, and the charge of destroying personal property as the other—

The statute under which this Indict1 was found is in these words.

Rev. Stat, 632 §38 — “Every person who shall wilfully and maliciously kill, maim or disfigure any horses, cattle, or other beasts of another person — or shall wilfully and mali*106ciously administer poison to such beasts, or expose any poisonous substance, with intent that the same should be taken or swallowed by them, — or shall wilfully and maliciously destroy or injure the personal property of another person, in any manner, or by any means, not particularly described or mentioned in this chapter, shall be punished by imprisonment”. &c &c

Several distinct offences are here created and enumerated — and if any two of them are embraced in the same Count it would be a valid objection to the Indict*—

If after alleging that Defts. killed the hogs of Davis, there was a distinct and independent allegation that the Defts. destroyed the personal property of Davis, then the objection is well taken—

But I think that the averment that the Defts. thereby then and there destroyed the personal property cannot be considered independent of the previous allegation that the Defts.' killed the hogs—

The charge altogether is that the Defts. killed 25 hogs, the beasts of P. Davis, and did thereby destroy the personal property of said Davis—

The language here used necessarily precludes any supposition that other personal property, than the hogs, were intended — It is a mere conclusion of law that by killing the hogs, they had thereby destroyed the personal property of Davis—

This concluding averment that the Defts. thereby destroyed the personal property, is a mere inference or conclusion of the prosecutor, and can in no sense affect or qualify the charge of'killing, especially as the conclusion of law is strictly true—

Mo. in arrest overruled—

To be certified—