State v. Berry

• Decision Date: 24 May 1920
• Docket Number: No. 4684.,4684.
• Citation: 177 N.W. 1012,43 S.D. 85
• Parties: STATE v. BERRY.
• Court: South Dakota Supreme Court

43 S.D. 85

177 N.W. 1012

STATE

v.BERRY.

No. 4684.

Supreme Court of South Dakota.

May 24, 1920.

Appeal from Circuit Court, Douglas County; R. B. Tripp, Judge.

James H. Berry was prosecuted for maliciously killing the dog of another. Demurrer to information was sustained, and the State appeals. Reversed.Robert D. Walker, State's Atty., and Zenas R. Gurley, Asst. State's Atty., both of Armour, for the State.

E. P. Wanzer, of Armour, for respondent.

WHITING, J.

This appeal is from a judgment on demurrer to a criminal information. Section 4323, Rev. Code 1919, provides that-

“Every person who maliciously kills, *** any animal ***, the property of another *** is guilty of a misdemeanor.”

The information before us charged that this respondent-

“did commit the crime of *** killing a dog as follows: That the said James H. Berry (on the date and at the place named) did unlawfully, maliciously and willfully *** kill *** one *** dog, the property of one C. C. Atwater. ***”

[1][2][3] This information follows the wording of the statute, and it is clear that it would have been good as against the demurrer if it had contained nothing except as above noted. Stone v. State, 50 Tenn. (3 Heisk.) 457. It, however, contained allegations of certain facts from which inferences of fact favorable to the accused might be drawn. State v. Churchill, 15 Idaho, 645, 98 Pac. 853, 19 L. R. A. (N. S.) 835, 16 Ann. Cas. 947. But inferences of fact are to be drawn by the jury and not by the court. People v. Jones, 241 Ill. 482, 89 N. E. 752, 16 Ann. Cas. 332;People v. Tessmer, 171 Mich. 522, 137 N. W. 214, 41 L. R. A. (N. S.) 433, and notes in 41 L. R. A. (N. S.). The trial court evidently recognized this rule; but there was one allegation from which such court seems to have been of the view that the law would draw an inference negativing the allegation of malice. The information alleged that the accused “did not know to whom the dog belonged.” In his order sustaining the demurrer the trial court says:

“It appearing that the information is under the first clause of section 4323, 1919 Rev., and that the penal term therein ‘maliciously’ means ‘a wish to vex, annoy or injure another’ as defined by section 3628 of this same Code, and it appearing from the information that defendant at the time of shooting the dog did not know to whom it belonged, and that he could have had no intent to injure the owner or another, and there being no criminal liability under this clause of the statute, the demurrer will have to be sustained; and it is so ordered.

The above is the prevailing judicial view of such language when used to charge malicious injury to or killing the animal of another, as distinguished from cruelty to animals (not here involved), and covered by the second clause of the section where ownership is immaterial.”

And in said order the trial court cites numerous cases in support of his position. Such authorities support the proposition that the malice, necessary to guilt under this information, must be malice toward the...