Barber v. State, No. 24556.

Docket NºNo. 24556.
Citation199 Ind. 146, 155 N.E. 819
Case DateMarch 31, 1927
CourtSupreme Court of Indiana

199 Ind. 146
155 N.E. 819

BARBER
v.
STATE.

No. 24556.

Supreme Court of Indiana.

March 31, 1927.


Appeal from Rush Circuit Court, Will M. Sparks, Judge.

Morton Barber was convicted of malicious trespass, and he appeals. Reversed, with directions.

[155 N.E. 820]


Chauncey Duncan, of Rushville, and Owen S. Boling, of Indianapolis, for appellant.

Arthur L. Gilliom, Atty. Gen., and D. F. Stansbury, of South Bend, for the State.


PER CURIAM.

Appellant, by indictment, was charged, and, upon a trial, found guilty of the offense know as malicious trespass, as defined by section 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 21 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 and the said Mary A. Bundy in the sum of $25,” 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.

[1] 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, 192 Ind. 639, 137 N. E. 758;Kimmel v. State (Ind. Sup.) 154 N. E. 16.

[2] 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, 21 Ind. 441;State v. Maddox, 85 Ind. 585, 587.

The indictment is in the language of the statute (section 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, 175 Ind. 25, 93 N. E. 223.

[3] The indictment named the owner of the property injured. It stated the amount of

[155 N.E. 821]

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, 60 Ind. 298;Kinsman v. State, 77 Ind. 132;Sample v. State, 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, 27 Ind. 425; Sample v. State, supra).

[4] 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 appellant is not well taken. Nor was a description of the land on which the fence was located an essential ingredient of the offense here charged. Winlock v. State, 121 Ind. 531, 23 N. E. 514.

The present contention of appellant might arise at the trial upon the evidence. The location of the fence at a place, or under such circumstances which would have justified appellant in lawfully removing it, even though he entertained malice toward the owner, would not make him criminally liable. State v. Headrick, 48 N. C. 375, 67 Am. Dec. 249;Edgar v. State, 156 Ala. 147, 47 So. 295;Boyett v. State, 132 Ala. 23, 21 So. 551;Tegarden v. State (Ark.) 171 S. W. 910;1State v. Watson, 86 N. C. 626;McCullers v. State, 86 Tex. Cr. R. 247, 216 S. W. 182.

The instant charge is unlike that of State v. Dupies, 91 Ind. 233, where, from the allegations of the indictment, two or more sections of the statute were to be construed together, one defining an offense, and the other, under similar circumstances, not an offense, it was error not to characterize the acts relied upon to constitute the offense as unlawful, or to state facts from which the unlawful character of the transaction might be fairly inferred. Nor is the case of Batts v. State, 194 Ind. 609, 144 N. E. 23, controlling, for in that case transporting intoxicating liquor was the charge based upon a statute making it “unlawful for any person to transport *** intoxicating liquor except as in this act provided.” Because of the exception in this latter act, it was necessary to characterize the transporting as unlawful. The indictment at bar is not subject to more than one construction and is sufficiently certain to inform appellant of the offense with which he was charged.

It appears from the record that at the conclusion of the evidence the court, of its own motion, sent the jury with the sheriff to view the place where the fence had been torn down, “to which action of the court the defendant at the time objected, and refused his consent thereto,” but that his objection was overruled,...

To continue reading

Request your trial
11 practice notes
  • Snyder v. Commonwealth of Massachusetts, No. 241
    • United States
    • United States Supreme Court
    • January 8, 1934
    ...v. Territory, 9 Ariz. 1, 76 P. 605, 11 Ann.Cas. 1153; Shular v. State, 105 Ind. 289, 4 N.E. 870, 55 Am.Rep. 211; but see Barber v. State, 199 Ind. 146, 155 N.E. 819; State v. Rogers, 145 Minn. 303, 177 N.W. 358; People v. Thorn, 156 N.Y. 286, 50 N.E. 947, 42 L.R.A. 368; State v. Sing, 114 O......
  • Mulry v. State, No. 2-877A306
    • United States
    • Indiana Court of Appeals of Indiana
    • January 21, 1980
    ...conduct was sufficient to support a finding of wrongful, intentional conduct required of Malicious Trespass. Barber v. State, (1927) 199 Ind. 146, 149, 155 N.E. 819, 820; Baldock v. State, (1978) Ind.App., 379 N.E.2d 539, We therefore affirm Trusley's conviction and reverse Mulry's convicti......
  • Carter v. State, No. 2-178A5
    • United States
    • Indiana Court of Appeals of Indiana
    • August 11, 1980
    ...amounts to a statement that such act was wrongful and done intentionally, without just cause or excuse . . . ." Barber v. State, (1927) 199 Ind. 146, 149, 155 N.E. 819, 820. See also Baldock v. State, (1978) Ind.App., 379 N.E.2d 24 See also Booher v. State, (1901) 156 Ind. 435, 447, 60 N.E.......
  • Lysiak v. Town of Lowell, Ind., Nos. 93-1677
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 30, 1994
    ...trespass to use it to try disputed rights in real property." Steele v. State, 132 N.E. 739, 740 (Ind.1921); accord Barber v. State, 155 N.E. 819, 822 (Ind.1927); Myers v. State, 130 N.E. 116, 117 (Ind.1921); Hughes v. State, 2 N.E. 956, 958 (Ind.1885); Dawson v. State, 52 Ind. 478, 481 (Ind......
  • Request a trial to view additional results
11 cases
  • Snyder v. Commonwealth of Massachusetts, No. 241
    • United States
    • United States Supreme Court
    • January 8, 1934
    ...v. Territory, 9 Ariz. 1, 76 P. 605, 11 Ann.Cas. 1153; Shular v. State, 105 Ind. 289, 4 N.E. 870, 55 Am.Rep. 211; but see Barber v. State, 199 Ind. 146, 155 N.E. 819; State v. Rogers, 145 Minn. 303, 177 N.W. 358; People v. Thorn, 156 N.Y. 286, 50 N.E. 947, 42 L.R.A. 368; State v. Sing, 114 O......
  • Mulry v. State, No. 2-877A306
    • United States
    • Indiana Court of Appeals of Indiana
    • January 21, 1980
    ...conduct was sufficient to support a finding of wrongful, intentional conduct required of Malicious Trespass. Barber v. State, (1927) 199 Ind. 146, 149, 155 N.E. 819, 820; Baldock v. State, (1978) Ind.App., 379 N.E.2d 539, We therefore affirm Trusley's conviction and reverse Mulry's convicti......
  • Carter v. State, No. 2-178A5
    • United States
    • Indiana Court of Appeals of Indiana
    • August 11, 1980
    ...amounts to a statement that such act was wrongful and done intentionally, without just cause or excuse . . . ." Barber v. State, (1927) 199 Ind. 146, 149, 155 N.E. 819, 820. See also Baldock v. State, (1978) Ind.App., 379 N.E.2d 24 See also Booher v. State, (1901) 156 Ind. 435, 447, 60 N.E.......
  • Lysiak v. Town of Lowell, Ind., Nos. 93-1677
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 30, 1994
    ...trespass to use it to try disputed rights in real property." Steele v. State, 132 N.E. 739, 740 (Ind.1921); accord Barber v. State, 155 N.E. 819, 822 (Ind.1927); Myers v. State, 130 N.E. 116, 117 (Ind.1921); Hughes v. State, 2 N.E. 956, 958 (Ind.1885); Dawson v. State, 52 Ind. 478, 481 (Ind......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT