People v. Moody

The prisoner was indicted at the Tioga County Sessions for malicious mischief; the particular offense charged was, that he did, in the daytime, but secretly and clandestinely, and with malice, cut, mutilate and injure a harness. The counsel for the prisoner moved to quash the indictment, on the ground that “it did not set forth or describe any criminal offense indictable either at common law or by any statute law of the State of Hew York.” This motion was granted by the Court of Sessions, There is no pretense for holding that the offense charged falls within the provisions of any of our statutes. The only question is, whether this offense charged—-the wanton destruction of personal property in the daytime, but done secretly, clandestinely and maliciously •—is a crime or misdemeanor at common law, for which an indictment can be sustained, or whether it is simply a trespass for which the offender can be punished only in a civil action. There are express adjudications on this question in our State and in other States, some of them conflicting and leaving the law apparently unsettled. Before alluding to them, I desire to present some general suggestions for the purpose of casting, perhaps, some faint light on an interesting controversy. Much respect has been paid to the statements of the great commentator on English law, Sir William Blackstone. His Commentaries have been received as authority, and are, as all admit, entitled to the highest consideration. In reference to the sub-ject under consideration, he says, in book 4, cb. 17, “ Malicious mischief or damage is the next species of injury to private property which the law considers as a public crime. This is such as is done, not animo furandi, or with an intent of gaining by another’s loss, which is some, though a weak excuse, but either out of a spirit of wanton cruelty or black and diabolical revenge, in which it bears a near relation to the crime of arson, for, as that affects the habitation, so this does the other property of individuals. And, therefore, any damage arising from this mischievous disposition, though only a trespass at common law, is now, by a multitude of statutes, made penal in the highest degree. Of these I shall extract the contents in *573order of time. And first, by. statute, 22 Henry "VIII, cli. 11, perversely and maliciously to cut down or destroy the pow-dike in the fens of Norfolk and Ely is felony.” Several other statutes are referred to in successive reigns after Henry YHI, in which the offense is declared to be felony without the benefit of clergy. Our interest now is in reference to the period of time when, according to Blackstone, malicious mischief was first, by statute, declared a crime in England. The 22 Henry YHI, would be about 1531. The offense is one which the commentator says “the law considers-as a i public crime.1 ” It bears a near relation to arson, which, especially house burning, was a crime at common law. It is an offense committed “out of a spirit of wanton cruelty or black and diabolical revenge.” It is an offense toward which our English ancestors were specially sensitive, as evidenced by the multitude of statutes enacted for the purpose of punishing the offender with a severity which seems to us not called for by the nature of the crime. Is it credible that there was in England, prior to 1531, no such statute regulating the punishment of such offenses, and that no indictment could be maintained at common law ? It was about 1071, or in the fourth year of Willliam of Normandy, that he solemnly swore that he would observe the ancient and approved laws of England, particularly those of Edward the Confessor; and subsequently those laws, together with such alterations as the Conqueror made, were ordained and declared, in a general council during his reign, to be the laws of the land,, and in all things to be observed. The laws digested and collected by Edward the Confessor were, it is said, principally those of Alfred, and thus combining the ancient unwritten laws and customs of the Britons, the Piets and Danes, with the written and unwritten laws and customs of Saxons, and Bomans, and Normans, the foundations of British law were laid, and the great fountain of the English common, law was unsealed. From the 4th of "William I, to 22 Henry YHI, a period of nearly five centuries, during all which time the common law bore sway, it is, as remarked, hardly credible that there was no criminal punish*574ment of the crime of malicious mischief. May we not rather conclude with Hutchinson, Justice, as cjuoted and approved in Loomis v. Edgerton (19 Wend. R, 420), that “the statutes were so ancient, and the punishment so severe, that they were, of course, resorted to, and the common law thus lost sight of, though the statutes were intended as a mere increase of its penalties ? ”

In Pennsylvania and Massachusetts indictments for malicious mischief have beén frequently .maintained, though there were no State statutes declaring the offense criminal.

In Republic v. Feischer (1 Dallas R., 335),'the indictment’ was for “ maliciously^ willfully and wickedly killing a horse.” The attorney-general .observed that “ he had not been able to discover any instance of an indictment at common law for killing an animal, or indeed for any species of malicious mischief, yet that the reason of this was probably the early interference of the statute law to punish offenses of such enormity, for- that in all precedents, as well ancient as modern, he had found the charge -laid 1 contra formam siatuti.’ ” He further said, “the law proceeded upon principle, and not merely upon precedents.” The indictment was sustained, and, 'as the attorney-general had claimed, upon principle, the chief justice, in pronouncing the judgment, saying, “ that whatever amounts to a public wrong, may be made the subject of an indictment.”

In case of Commonwealth v. Leach and others (1 Mass, R., 58), the indictment was for poisoning a cow. The indictment was at common law. Ho doubt was expressed but that the indictment would lie at common law. The question considered was, whether the Court of Sessions had jurisdiction. In that case, Sedgwick, Justice, said: “It appears to me, generally speaking, that the English statutes, which were in force at the time of the emigration of our ancestors from that country, are - common law here.” Dana, Chief Justice, said-: “The term ‘common law,’ ought not be construed so strictly as is contended for by the counsel for the defendant. Gren'erally, when an English statute has been made in amendment of the common law of England, it is here to be considered as *575part of onr common law.” In Commonwealth v. Wing (9 Pick. R., 3), Chief Justice Parker, quoting approvingly Chief Justice Sewall, in Cole v. Fisher (11 Mass, R.), says, in relation to the unnecessary discharge of guns, that “ when the act is accompanied with purposes of wanton or deliberate mischief the guilty party is liable, not only in a civil action, but as an offender against the public peace and security, and is -liable to be indicted.”

In The People v. Smith (9 Cow. R., 258), an indictment for maliciously,killing a cow was sustained, the court saying that the offense was distinguishable from an ordinary trespass in this, “ that it is not only a violation of private right, without color or pretense, but without the hope or expectation of gain."

This, it seems to me, is a concise and correct statement of the true doctrine.

We come now to the case of Loomis v. Edgerton (19 Wend. R., 419), where the "precise question raised in this case arose and was determined, the court holding that maliciously and secretly breaking in pieces a cutter was a criminal offense. Justice Co WAN, after reviewing the authorities and approving of the decision in People v. Smith (supra), says the balance of authority was in favor of holding the offense to be criminal. Were it otherwise, in his expressive language, “it would be a sad exception to the general wisdom of the common law.”

The case of The People v. Kilpatrick (5 Denio R., 277), and upon the authority of which we were told on the argument, the indictment in this case was quashed, I do not think is necessarily in conflict with People v. Smith, or Loomis v. Edgerton. The indictment in Kilpatrick's Case charged him with maliciously breaking in pieces two windows in a dwelling house. Doubt was expressed in that case whether, if the charge had been that the offense was secretly doné, the indictment could not have been maintained. But larceny could not be predicated on the carrying away of property where the offender was first obliged to detach it from the freehold. Injury to the freehold was but trespass. Though the distinction may not be well taken, yet, such seems always to have been the law, *576except as changed by statute. I cannot agree that the indictments for killing domestic animals have been sustained upon features peculiar to such offenses, and as alone evincing a cruel and depraved mind, and that such cases are exceptional. Our legislature, it is true, has marked its abhorrence of such offenses by enacting that he who shall willfully administer poison to any cattle, horses or sheep, or shall expose poisonous substances with the intent that the same may be taken, may, on conviction, be punished by imprisonment in the State prison. (3 R. S., 5th ed., 969, § 16.) The offensg which, by the common law, was a misdemeanor, may now be punished as a felony. Our statute, like the English statutes, has raised the grade of the offense. But equal depravity and wickedness may exist, and be the cause of malicious mischief, where there is no killing or maiming of domestic animals. The earliest English statute was directed against the villain who would break down the dikes and let in the wasting flood to sweep away the habitations and destroy the fields of the farmer. We have already seen that Blackstone classes malicious mischief with the public crimes of England. As a public crime, as an offense tending to disturb the public peace, it is indictable. It would be a strange anomaly, indeed, if a prowling villain could enter on another’s premises clandestinely and then secretly burn, waste and destroy any large-amount of valuable personal property, and go unwhipt of justice, when, if he had carried away the value of twenty-five dollars, he would have been a subject for the State prison for a term of years. In my judgment we ought to follow the ruling in Loomis v. Edgerton, and hold that the wanton, malicious and.secret destruction of personal property is a misdemeanor at the common law, and, therefore, indictable and punishable criminally. If my brethren agree with me, the order quashing this indictment should be reversed, and the prisoner should be required to appear and plead to the indictment.

Ordered accordingly.