Armstrong v. State

• Court: Arkansas Supreme Court
• Writing for the Court: MANSFIELD, J.
• Citation: Armstrong v. State, 15 S.W. 1036, 54 Ark. 364 (Ark. 1891)
• Decision Date: 28 March 1891
• Parties: ARMSTRONG v. STATE

15 S.W. 1036

54 Ark. 364

ARMSTRONG v. STATE

Supreme Court of Arkansas

March 28, 1891

APPEAL from Newton Circuit Court, R. H. POWELL, Judge.

Judgment affirmed.

J. M Moore for appellant.

1. The justice of the peace had no jurisdiction. Art. 7, sec. 40 Const.; Mansf. Dig., sec. 1654; 44 Wis. 288; 22 Kan. 15; 32 Ark. 202; 1 Herm. on Est. and Res. Adj., pp. 107, 167. This case not only involves a matter of damages to personal property, but the object and effect of the statute is to redress and afford satisfaction for the private wrong as well as the punishment of the public offense.

2. Appellant was entitled to a new trial on the ground of newly discovered evidence. 2 Ark. 42; Rose Digest, p. 563; 10 Ark 556.

3. The instructions were misleading. Malice is an essential ingredient of malicious mischief, and it must exist against the owner of the animal. 35 Ark. 345.

W. E. Atkinson, Attorney General, for appellee.

This is a prosecution under sec. 1654, Mansf. Dig.

1. The damages are a part of the punishment. Justices have jurisdiction of all misdemeanors. See 19 Ark. 176.

2. The newly discovered evidence could not have affected the verdict.

3. The instructions were correct. The motion is merely evidentiary. Bur. Cir. Ev. , 296.

OPINION

MANSFIELD, J.

Armstrong was charged before a justice of the peace with malicious mischief. The offense as alleged was committed by the killing of two horses belonging to one Holland. The jury found him guilty and fixed his fine at the sum of one hundred dollars. They assessed the value of the horses at two hundred dollars, and the justice thereupon rendered judgment in favor of the State for the fine, and in favor of Holland for three-fold the assessed value of his horses. The defendant appealed to the circuit court, where the case was tried anew with the same result reached in the justice's court, except that the fine imposed on the appeal was only twenty dollars. A new trial was refused, and the defendant seeks a reversal of the judgment of the circuit court on the following grounds: (1) want of jurisdiction in the justice of the peace; (2) newly discovered evidence; (3) error in court's charge to the jury.

1. The offense for which the defendant was prosecuted is defined by section 1654 of Mansfield's Digest, which, omitting a proviso not applicable to this case, is as follows: "If any person shall wilfully and maliciously, by any means whatsoever, kill, maim or wound any animal of another which it is made larceny to steal, he shall, on conviction, be punished by a fine of not less than twenty nor more than one hundred dollars or by imprisonment in the county jail for a period of not less than ten nor more than sixty days, or by both such fine and imprisonment, and shall, moreover, be liable to damages to the owner of the animal so killed, maimed or wounded, as in the preceding section provided."

The preceding section provides that: "Every person who shall knowingly administer any poison to any horse, ass, mule, or to any cattle, hog, sheep, goat or dog, or maliciously expose any poisonous substance with intent that the same shall be taken or swallowed by any of the aforesaid animals, shall, on conviction, be punished in the manner prescribed by law for feloniously stealing property of the value of the animal so poisoned; and the jury who shall try such cases shall assess the amount of damages, if any actual damage has occurred, occasioned by such poisoning or intent to poison, and the court shall render judgment in favor of the party injured for three-fold the amount so assessed by the jury."

The constitution of 1874 provided that justices of the peace should have such jurisdiction of misdemeanors as was then or might be prescribed by law: Art. 7, sec. 40, 3d clause. At that time a provision of the criminal code which still remains in force gave to justice's courts jurisdiction concurrent with the circuit courts, in "all matters less than felony." (Mansf. Dig., sec. 1966). It is conceded that under these two provisions--the one constitutional and the other statutory--justices of the peace have jurisdiction of all cases of misdemeanor; and it is not controverted that malicious mischief is an offense of that grade. But it is contended that this ease is one to which the jurisdiction of the justice could not be made to extend without a violation of the constitutional provision limiting his jurisdiction in matters of damage to personal property to cases where the amount in controversy does not exceed the sum of one hundred dollars: Art. 7, sec. 40, 2d clause. In support of this contention it is argued that the assessment of damages made in Holland's favor was rather by way of redressing a private wrong than as a punishment for a public offense. The same position, in effect, was assumed by counsel in the case of Lemon v. State, 19 Ark. 171, which was also an appeal from a conviction for malicious mischief. But the court held that the provision of the statute giving the injured party three-fold the actual damage sustained made the act "highly penal;" and that the damages assessed were as much a part of the punishment as the imprisonment. On this subject Mr. Justice Hanly, who delivered the opinion of the court, said: "It is not uncommon for the legislature to prescribe a double penalty for offenses, e. g., personal punishment and pecuniary fine, and we know of no principle which the policy violates. Such was the evident design of the legislature in the act before us. It is true by the act we are considering, the legislature has seen fit to bestow the pecuniary fine upon the injured party, instead of appropriating it to the public; acting, we presume, upon the ground that the public wrong would be compensated by the imprisonment, and that the injured party would be restored to his rights and reimbursed in his damages by the pecuniary mulct." At the time of Lemon's conviction the statute punished the offender by imprisonment for a period of not less than six months. But it inflicted no pecuniary punishment, except such as resulted from the assessment of damages made in favor of the owner of the property. And yet it will be observed that the court in that case regarded the damages as being in effect a fine and part of the punishment for the public crime. The statute was amended in 1869 so as to provide, as it does at this time, that a fine of not less than twenty nor more than one hundred dollars shall be imposed, or that the accused shall be punished by imprisonment in the county jail for a period of not less than ten nor more than sixty days, or that he shall be punished by both such fine and imprisonment; and that damages shall also be assessed in favor of the owner of the property, as directed by the original act. The amended act, while thus reducing the period of imprisonment and permitting the jury to omit that part of the punishment entirely, imposes what it terms, apparently in contradistinction to the damages, "a fine." But, in the view taken of the original act in the case cited above, the effect of the amendment was to increase the pecuniary punishment, and the whole amount adjudged against the defendant is therefore to be regarded as in the nature of a fine--part of which goes to the State and the residue to the injured party. Bearing in mind the nature of the offense and the greater severity with...