Commonwealth v. Smith

• Decision Date: 07 December 1869
• Citation: 69 Ky. 263
• Parties: Commonwealth v. Smith.
• Court: Kentucky Court of Appeals

69 Ky. 263

Commonwealth v. Smith.

Court of Appeals of Kentucky.

December 7, 1869

Indictment for " malicious mischief, in the shooting and killing by defendant of the sheep of A C., willfully and unlawfully, without the owner's consent."

The circuit court sustained a demurrer to this indictment. On this appeal by the commonwealth that judgment is reversed. Held,

First, " by section 7, article 25, chapter 28 Revised Statutes (1 Stanton, 411), it is enacted that if any person unlawfully, but not with felonious intention, destroy or injure any property, real or personal, of another, he shall be subject to indictment and fine of from ten to two hundred dollars; " that in the indictment above the offense, and in what it consisted, is directly charged; but it is named as " malicious mischief " instead of " willful trespass. "

Second, that the offense charged in said indictment was at common law known as malicious mischief, and our statute aforesaid has enacted that such trespass to personal property shall be an indictable offense, but limits the discretion of the jury, which the common law did not.

APPEAL FROM JOHNSON CIRCUIT COURT.

JOHN RODMAN, Attorney-General, For Appellant,

CITED

Revised Statutes, sec. 8, art. 25, chap. 28, 1 Stanton, 411.

OPINION

WILLIAMS CHIEF JUSTICE.

The offense charged in this indictment, to which the court sustained a demurrer, is " malicious mischief in the shooting and killing by appellee of the sheep of Allen Collins, willfully and unlawfully, without the owner's consent."

By section 7, article 25, chapter 28, 1 Stanton's Revised Statutes, 411, it is enacted that if any person unlawfully but not with felonious intention, destroy or injure any property, real or personal, of another, he shall be subject to indictment and fine of from ten to two hundred ??ollars.

By section 165, Criminal Code, a demurrer is proper when the indictment does not substantially conform to the requisites of article 2, chapter 2, title 6. By section 123 of said article, chapter, and title, " the indictment must ??e direct and certain as regards ‘ the offense charged’ and the particular circumstances of the offense charged, where they are necessary to constitute a complete offense."

Here the offense and in what it consisted is directly charged, but it is named as malicious mischief instead of willful trespass.

Mr Wharton, in his admirable work on American Criminal Law,...