People v. Olsen

• Decision Date: 20 August 1889
• Citation: 6 Utah 284,22 P. 163
• Court: Utah Supreme Court
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. LORENZO OLSEN, APPELLANT

22 P. 163

6 Utah 284

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. LORENZO OLSEN, APPELLANT

Supreme Court of Utah

August 20, 1889

APPEAL from a judgment of conviction in the district court of the first district. One defendant appealed. The opinion states the facts.

Affirmed.

Mr Thomas Maloney for the appellant.

Mr George S. Peters, U. S. Dist. Atty., for the respondent.

ANDERSON J. ZANE, C. J., and JUDD, J., concurred.

OPINION

ANDERSON, J.:

The defendant and one Chris Larsen were convicted in a justice's court on a complaint charging them jointly with maliciously and willfully maiming and wounding a pig, the property of one John E. Britton. They appealed to the district court, and were again both convicted, and the defendant Olsen has appealed to this court.

The evidence, which is all set out in the record, shows that the defendant and Larsen were driving past the premises of Britton in a wagon, having a gun in the wagon, and when near Britton's house the one not engaged in driving the team picked up the gun and discharged it at the pig, which was running at large, wounding and maiming it; that one of them immediately after the shooting shouted "Skedaddle," and the one who was driving the team drove rapidly away. Two witnesses for the prosecution testified to seeing the shot fired, but were not able to state whether it was the defendant or Larsen who did the shooting. At the trial in the district court neither of the defendants testified, nor was any evidence offered in their behalf.

Section 4708, Comp. Laws, 1888, provides that "every person who maliciously kills, maims, or wounds an animal, the property of another, or who maliciously and cruelly beats, tortures, or injures any animal, whether belonging to himself or another, is guilty of a misdemeanor." The prosecution is based on this section, and at the close of the evidence for the prosecution counsel for the defendants moved the court to instruct the jury to return a verdict of not guilty, on the ground that there was no malice proved on the part of either one of the defendants against the owner of the property; the evidence showing that neither of them were acquainted with him. This instruction the court refused to give, but gave the following instruction on the subject of malice towards the owner, to wit: "If a man recklessly and with intent to injure the property of somebody, not knowing or caring who it is, and perhaps not knowing the owner, should kill an animal wantonly, that would be malice towards whomever might own the property; and in a reckless killing of that kind malice towards the particular owner can be inferred by the jury from what was done. So, in this case, you can determine whether there was malice or not, from all that took place, from all the testimony in the case. Consider it all, and from the whole transaction determine: Did these defendants, in the first place, shoot and either kill or wound the animal? and, if so, was it done under such circumstances as to show a willful disregard of the rights of the owner and with malice?" The refusal of the court to instruct the jury as asked, and the giving of the foregoing instruction, are assigned as error by defendant. There was no error in this action of the court. The wanton and malicious injury or destruction of property belonging to another was an indictable offense at common law. Loomis v. Edgerton, 19 Wend. 419; People v. Moody, 5 Parker, Crim. R., 568; State v. Manuel, 72 N.C. 201; Com. v. Leach, 1 Mass. 59; Com. v. Wing, 9 Pick. 1; State v. Wilson, 3 Mo. 125; State v. Batchelder, 5 N.H. 549. And it has always been held, both at common law and under the statutes of the various states, that malice against the owner of the property is an essential ingredient of the crime of malicious mischief, and must be alleged and proved to sustain a conviction. Northcot v. State, 43 Ala. 330; Hobson v. State, 44 Ala. 380; Dawson v. State, 52 Ind. 478; State v. Newby, 64 N.C. 23; State v. Enslow, 10 Iowa 115; Duncan v. State, 49 Miss. 331. But it is not necessary, in order to prove malice within this rule, to show that the defendant ever said or did anything indicating malice against the owner. Malice may be inferred, if the injury is unlawful, from the instrument used, or the wantonness, cruelty, or recklessness of the deed, or from any attendant circumstances which would justify the inference of malice in other crimes where malice is an...