People v. O'Brien
| Decision Date | 10 February 1886 |
| Citation | 26 N.W. 795,60 Mich. 8 |
| Parties | PEOPLE v. O'BRIEN. |
| Court | Michigan Supreme Court |
Exceptions from Allegan.
Henry F. Severens, for defendant.
The respondent was convicted upon a complaint and warrant, before a justice of the peace, charging him with having, "with force and arms, unlawfully, willfully, and secretly, in the night-time, between sunsetting and sunrising, entered upon the improved farming land of Levi Loomis and Charles H Loomis," situate in the township of Ganges, in the county of Allegan, "and then and there, without the permission of the said Levi Loomis and Charles H. Loomis, or either of them, the owners of said land, and with intent then and there to cut and destroy the grain of said Levi Loomis and Charles H. Loomis then and there growing and being." The case was appealed to the circuit, and a trial there had also resulting in his conviction, from which judgment he brings error.
Upon the first introduction of evidence by the prosecution, the defendant's counsel objected to the same, upon the ground that the complaint and warrant did not charge an offense under the statute, and that the alleged trespass was not averred to be upon the land of another, nor was the allegation of ownership of the premises sufficient to warrant proof thereunder. To an inquiry of the court whether the point was that the complaint did not in express language allege that it was the land of another, the counsel for defendant replied that it was Thereupon the objection was overruled, and the evidence admitted, to which defendant's counsel excepted. The counsel for the defense did not point out upon the trial in what particulars the complaint and warrant were defective but assigns in this court as error that they failed to show that the alleged trespass was with any malicious intent, and that the land upon which the trespass was alleged to be committed was not described sufficiently, and also that they did not show the kind of grain intended to be injured by the defendant. The complaint was evidently based upon section 9174 of Howell's Statutes, which provides that "every person who shall willfully commit any trespass by entering upon the garden, orchard, or other improved land of another without the permission of the owner thereof, and with intent to cut, take, carry away, destroy, or injure the trees, grain, grass, hay, fruit, or vegetables there growing or being, shall be punished," etc. Comparing the complaint with the statute, it would seem that all the essential allegations necessary to set out the statutory offense are contained in the complaint. The fact of willfully entering upon improved land of another, without permission of the owner, with intent to cut and destroy grain growing thereon, is clearly set forth, and this is enough to bring the case within the statute. The intent is charged in the language of the statute, which is sufficient without averring that the intent was malicious.
The inquiry arises whether it was necessary to particularly describe the premises trespassed upon, and to state the kind of grain intended to be destroyed. If this matter had been properly brought to the attention of the court during the trial, we should be inclined to hold that the respondent would be entitled to have a specific description of the premises, and of the kind of grain, set forth in the complaint and warrant; but it appears from the record that neither in the justice's court, nor on the trial...
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