Barber v. State

• Decision Date: 31 March 1927
• Docket Number: No. 24556.,24556.
• Citation: 199 Ind. 146,155 N.E. 819
• Parties: BARBER v. STATE.
• Court: Indiana Supreme Court

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.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 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, and he excepted. For years prior to 1881, the statute provided that in criminal cases, as well as in civil cases-

“whenever, in the opinion of the court, it is proper for the jury to have a view of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer,” etc. 2 R. S. 1852, p. 382, § 164.

Under this statute it was not error for the court to send the jury to view the place without the consent of the defendant (Fleming v. State, 11 Ind. 234), but in 1881 that statute was amended (chapter 36, Acts. Sp. Sess. 1881, pp. 114, 162, § 252), by inserting the clause, “ And with the consent of all the parties” (our italics), immediately following, “Whenever, in the opinion of the court” (section 1827, R. S. 1881; section 2305, Burns' 1926).

[5] Obviously, the purpose of the Legislature in making the amendment was to limit the authority of the court, in the matter of sending the jury trying a criminal case to view a place where any material fact occurred, to the cases, and those only, where all the parties shall consent thereto. It was error to send the jury to view the location of the fence in question without defendant's consent. Conrad v. State, 144 Ind. 290, 298, 299, 43 N. E. 221.

[6][7][8] One ground of defense relied on by appellant was that the fence which was torn down and removed was built on land over and along which he had an easement for a right of way to travel between his dwelling and a highway, and that it had been wrongfully and without right constructed at a place and in a manner to obstruct and close up such right of way, and that he merely had removed it in order to pass through. In support of this contention he offered in evidence all the pleadings and various steps taken and proceedings had including the opinion of the Appellate Court and final judgment entered in favor of defendants, in a cause wherein Penina Binford et al. were plaintiffs and Margaret Small et al., including this defendant, were defendants, which suit involved the right of the defendants to ingress and egress from their land immediately south of the Binford land over a strip 16 feet wide on the west side of the Binford land to a public highway. The prosecuting witness in the instant case was not a party to that suit, and in no manner bound by any order or judgment made or rendered therein. The court excluded each and all of these offered items of evidence, and, in doing so, correctly ruled. The case was tried upon the theory, sustained by the evidence, that the Bundy fence destroyed by appellant was constructed upon the east line of the Bundy land, but whether within the line of travel from a certain public highway to and from the land of appellant's wife was a question of fact for the jury. The right to thus travel is not based upon any paper authority or evidence of title, or decree of any court, but upon an asserted right acquired by long-continued use. It is true, criminal prosecutions for malicious trespass cannot be used as a means of trying disputed rights to the possession or use of real estate growing out of conflicting...