Barber v. State
| Decision Date | 31 March 1927 |
| Docket Number | 24,556 |
| Citation | 155 N.E. 819,199 Ind. 146 |
| Parties | Barber v. State of Indiana |
| Court | Indiana Supreme Court |
1. INDICTMENT AND AFFIDAVIT.---Averments which inform accused of nature and character of offense sufficient.---Although the Constitution (Art. 1, 13, 65 Burns 1926) requires that the facts constituting an offense shall be charged with clearness and certainty, that requirement is satisfied with such averments as will inform the accused of the nature and character of the offense with which he is charged. p. 148.
2. INDICTMENT AND AFFIDAVIT.---Indictment for malicious trespass held sufficient.---An indictment which charged that the defendant "maliciously and mischievously" injured a fence belonging to another, being in the language of the statute (2497 Burns 1926) was not insufficient for failure to use the word "unlawfully" (State v. Dupies, 91 Ind 233, and Batts v. State, 194 Ind. 609, distinguished). p 149.
3. TRESPASS.---Indictment for malicious trespass held not bad for uncertainty.---An indictment for malicious trespass by injuring a fence was not bad for uncertainty where it named the owner of the property injured and alleged that the injury damaged the property and the owner in a certain amount. p 149.
4. TRESPASS.---Indictment for malicious trespass for injuring a fence sufficient without naming owner of land.---An indictment which charged malicious trespass by tearing down and removing a fence and alleged damage to the fence and not to the land on which it was located was sufficient without naming the owner of the land. p. 149.
5. TRESPASS.---Description of land not essential to indictment for malicious trespass to fence.---An indictment charging malicious trespass by maliciously and mischievously injuring a fence is sufficient without a description of the land on which the fence was located. p. 149.
6. CRIMINAL LAW.---Sending jury to view place of crime without defendant's consent is error.---Under the present statute (2305 Burns 1926), sending a jury to view the place where the crime is alleged to have been committed without the consent of the defendant is reversible error (Fleming v. State, 11 Ind. 234, explained). p. 151.
7 TRESPASS.---Judgment involving defendant's right to easement over another's land in case where prosecuting witness was not party properly excluded in prosecution for malicious trespass.---In a prosecution for malicious trespass under 2497 Burns 1926 by tearing down and removing a fence, a judgment in favor of the defendant, involving his right of ingress and egress over an easement in adjoining land, the prosecuting witness not being a party to or bound by the judgment, was properly excluded. p. 152.
8. TRESPASS.---Prosecution for malicious trespass not proper way of determining defendant's right to use real estate.---A criminal prosecution for malicious trespass cannot be used as a means of trying disputed rights to the possession or use of real estate growing out of con- flicting grants or by virtue of titles derived from different sources. p. 152.
9. TRESPASS.---Rule forbidding criminal prosecution to determine right to possession or use of real estate does not protect one who maliciously injures property of another.---The rule forbidding criminal prosecution for trespass as means of determining disputed right to possession or use of real estate does not afford complete protection to one who unlawfully and maliciously injures the property of another when his right to such possession or use is questionable by reason of an undetermined claim of another to the same right of possession or use. p. 152.
10. TRESPASS.---Instruction in prosecution for malicious trespass defining malice held unobjectionable.---In a prosecution for malicious trespass under 2497 Burns 1926, an instruction to the effect that malice may be inferred from any deliberate wrongful act against another or his property is not objectionable, as malice in such cases is not limited to injury to property done out of a spirit of cruelty, hostility or revenge against the owner of the property. p. 153.
11. TRESPASS.---Instruction in prosecution for malicious trespass that defendant had burden of establishing a right of way over another's land held proper.---In a prosecution for malicious trespass by destroying a fence, where the defense of the defendant was that the fence obstructed a right of way to his wife's farm, an instruction requiring the defendant to establish his right to the way claimed and, if established, that it might be lost by nonuser, was proper where the case was tried on such theory and there was evidence to sustain the proposition that the way had been abandoned. p. 156.
12. TRESPASS.---Defendant, having admitted destroying a fence, had burden of showing that it was done under a claim of right and establishing such right.---In a prosecution for malicious trespass by cutting down and removing a fence, the defendant, having admitted destroying the fence, had the burden of showing that he did so under a bona fide claim of right and of establishing such right. p. 156.
13. TRESPASS.---Instruction making defendant's defense depend on his having color of title to land on which he destroyed fence held erroneous.---In a prosecution for malicious trespass by destroying a fence, an instruction that in order to maintain the defense that the act was done under a bona fide claim of right because the fence obstructed a right of way, the defendant must have had color of title to such way, was erroneous. p. 158.
From Rush Circuit Court; Will M. Sparks, Judge.
Morton Barber was convicted of malicious trespass, and he appeals.
Reversed.
Chauncey W. Duncan and Owen S. Boling, for appellant.
Arthur L. Gilliom, Attorney-General and D. F. Stansbury, for the State.
Appellant, by indictment, was charged, and, upon trial, found guilty of the offense known as malicious trespass, as defined by § 2497 Burns 1926, Acts 1905 p. 584, § 407. He was sentenced to pay a fine of $ 36, and be imprisoned in the county jail for twenty-one days. He appealed and has assigned as errors the overruling of his motion to quash the indictment, and the overruling of his motion for a new trial.
Appellant has filed a request for oral argument, but, in view of the record, briefs of counsel and questions presented, we deem an oral argument unnecessary.
The indictment charges that . . . defendant "did then and there maliciously and mischievously injure a certain fence, then and there the property of Mary A. Bundy by then and there maliciously and mischievously tearing down, cutting down and breaking down and removing said fence to the damage of said property of the said Mary A. Bundy in the sum of twenty-five dollars," etc.
This indictment is challenged; (1) For failing to allege that the acts were unlawfully done; and (2) for want of certainty, in that the removal of the fence might result in damage to the fence or damage to the land, or both, but it does not appear which was intended.
Although the Constitution of this state requires of the pleader clearness and certainty in charging an offense, that provision is satisfied with facts which will inform the accused of the nature and character of the offense with which he is charged. Ridge v. State (1923), 192 Ind. 639, 137 N.E. 758; Kimmel v. State (1926), 198 Ind. 444, 154 N.E. 16.
In the present case, the pleader failed to use the word "unlawfully," and hence the question--Did he use other language which conveys a like meaning, or such that would negative the possibility that the alleged act charged was lawful? State v. Murphy (1863), 21 Ind. 441; State v. Maddox (1882), 85 Ind. 585, 587.
The indictment is in the language of the statute (§ 2497, supra), which has no proviso or exception, and although it does not allege that the acts were unlawfully or feloniously done, yet it does charge that appellant maliciously and mischievously did the alleged acts and damage. To characterize an act as having been done maliciously and mischievously amounts to a statement that such act was wrongful and done intentionally, without just cause or excuse, and hence must be regarded as words expressing a meaning inconsistent with lawful. This conclusion, in connection with the statute which defines the offense and states the acts which constitute it, refutes the claim that the indictment is insufficient for failure to use the word "unlawfully." State v. Rodgers (1910), 175 Ind. 25, 93 N.E. 223.
The indictment named the owner of the property injured. It stated the amount of damage done to that property and also to the owner thereof. The character of the property injured was such that the alleged damage, as a matter of pleading, might be referred to the property or to its owner. In either form, the indictment would not be subject to a motion to quash for uncertainty, nor to such motion because the damage is alleged to be to both the property and the owner thereof (State v. Sparks [1878], 60 Ind. 298; Kinsman v. State [1881], 77 Ind. 132; Sample v. State [1885], 104 Ind. 289, 4 N.E. 40), for the reason that "to the owner" is immaterial to the accused, as clearness and certainty of the pleading in this particular is met by stating the "value of the damage done," which is material in fixing the limit of the fine, and important to the accused in the preparation of his defense. Harness v. State (1867), 27 Ind. 425; Sample v. State, supra. Moreover, appellant insists that the name of the person owning the land on which the fence was built should have been alleged. The pleading does not proceed upon the theory of injury to the land, but to the fence, and, as a question of pleading, in view of the language of the statute upon which it was predicated, the contention of appell...
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