.N[A[,IC10US MISCHIEV TO ANIMALS. 547 



liabilualed Lo and hardened by the sight of human torture 

 and bloodshed, the infliction of suffering upon animals was 

 not viewed in the light of a public of¥ense, therefore in these 

 days of greater sensibility and more universal sympathy a 

 court must pronounce the offenses of malicious mischief and 

 cruelty to animals not to be indictable "at common law," nor 

 at all, unless there are statutory provisions on the subject. 

 The common law is too large a factor in history and life to be 

 limited in its operation to days anterior to all legislation. 



These remarks may serve to throw some light on the dis- 

 crepancies we find in the cases. An early English case holds 

 that no indictment lies at the common law for unlawfully with 

 force and arms maiming a horse: that it is only a trespass, 

 independent of statute.^^'' In Vermont it was held that an 

 indictment for maiming colts is sustainable where the grava- 

 men is wanton cruelty; ^^* but in a later case it was held that 

 no indictment would lie for "feloniously, maliciously, mis- 

 chievously and wickedly killing a beast," the property of an- 

 •other.^^^ Whereas in New York there is a decision just to the 

 contrary, the court saying: "The offense is distinguishable 

 from an ordinary trespass in this : that it is not only a violation 

 of private right, without color or pretence, but without the 

 hope or expectation of gain." ^^° And in Tennessee it was 

 held that the killing of an animal was indictable at the com- 

 mon law ; ^'^ though a later case holds the malicious destruc- 

 tion of goods not to be indictable.^*^ 



'"' Ranger's Case, 2 East P. C. 1074. "It was so held also as late as 

 1840 in Reg. v. Wallace, i Crawf. & Dix. Cir. Cas. 403;" State v. Beek- 

 man, 127 N. J. L. 124. 



''''State V. Briggs. r Aik. (Vt.) 226.. distg. Ranger's Case supra where 

 ^'force and arms" alone appeared and not "all the wicked and malicious 

 motives and intentions set forth in this indictment." 



'" State V. Wheeler, 3 Vt. 344, 



"° Peo. V. Smith, S Cow. (N. Y.) 258. S. P. Respublica v. Teischer, i 

 Dall. (Pa.) 335. And see Cora. v. Leach, 1 Mass. 59. 



'" State V. Council, i Overt. (Tenn.) 305. 



"= Shell V. State, 6 Humph. (Tenn.) 283. 



