548 CRUELTY AND MALICIOUS MISCHIEF. 



Maiming or wounding an animal without killing it, is held 

 not to be an indictable offense in late cases in New Jersey^ ^'^ 

 and North Carolina ; ^^^ but in the latter State it has been held 

 that the malicious killing of a dog is indictable.^*^ In Penn- 

 sylvania the malicious wounding of an animal has been held 

 to be an indictable offense at the common law.'^* 



In a review of the cases on this subject it was said that 

 malicious mischief "has been recognized and declared to be 

 an indictable offense under the common law," that "such is 

 unquestionably the rule which has received the approval of 

 the most respected and highest authority of this country," but 

 that "it must, however, be admitted that the inclination of re- 

 cent decisions, so far as the common law is concerned is to re- 

 strict the injured party to his civil remedies, except in those 

 cases where the offense is accompanied by excessive wan- 

 tonness and cruelty; or where it is committed with stealth 

 and secrecy, in the night-time; or where it is productive of a 

 breach of the peace." ^*^ 



The wanton killing of an animal is an ordinary form of 

 malicious mischief. One who sets fire to a cow-house and 

 burns to death a cow therein may be indicted for killing the 

 cow."^ And where the defendant had not a lawful fence 

 and cattle got in and the defendant, wishing to frighten them 

 off though not to kill them, fired and killed a mule he did 

 not see on account of the height of the corn, he was held 



"" State V. Bcekman, 127 N. J. L. 124. 



"* State V. Manuel, 72 N. C. 201, where it is said, "Both the elementary 

 writers and the decisions hold that such offense is not indictable, but is a 

 civil trespass only." And see Branch v. State, 41 Tex. 622, 624. 



*'= State V. Latham, 13 Ired. L. (N. C.) 33. 



"" Com. V. Cramer, 2 Pears. (Pa.) 441,— and this though the animal is 

 trespassing at the time and there is no malice against the owner. 



"' 32 Am. Dec. 662 n. Cf. 72 Am. Dec. 357 n, holding that originally 

 malicious mischief to animals was not indictable and tracing chronologi- 

 cally the changes due to statutory law and judicial interpretation of what 

 constitutes "malice." 



"' Rex V. Haughton, s C. & P. 559. 



