State v. Guernsey
| Decision Date | 26 October 1880 |
| Citation | 9 Mo.App. 312 |
| Parties | STATE OF MISSOURI, Respondent, v. RICHARD GUERNSEY, Appellant. |
| Court | Missouri Court of Appeals |
1. In an information for malicious trespass, the premises need not be described with that certainty which will supersede proof of identity when the judgment is pleaded in bar.
2. In the absence of evidence of a grant or dedication, acquiescence of the owner in the use of the land for a public road for a period of fifteen years does not raise a presumption of an intention to dedicate for public use.
3. Where one wrongfully, intentionally, and wilfully trespasses upon another's property, it is immaterial that it was not done out of ill-will or express malice toward the owner.
APPEAL from the St. Louis Court of Criminal Correction, CADY, J.
Affirmed.
W. S. FIELD and C. F. REID, for the appellant.
M. W. HOGAN, for the respondent.
This was a proceeding by information in the Court of Criminal Correction for a misdemeanor. It is provided by sect. 1358 of the Revised Statutes that “every person who shall wilfully and maliciously * * * pull down, injure, or destroy any gate, post, railing, or fence, or any part thereof, * * * being the property of another, or enclosing the land of another, in which such person has no interest, shall be deemed guilty of a misdemeanor.” The information charged that defendant, “in the city of St. Louis, on February 29, 1880, unlawfully, wilfully, and maliciously did pull down, injure, and destroy a certain part of a certain fence of another, to wit, the property of one Reuben Kidder, which said fence enclosed the land known as numbers 1, 2, 3, 4, 5, and 6 in block 4, situate, lying, and being in said city of St. Louis, and being the property of said Kidder,” etc. There was a trial by jury, and defendant was found guilty.
It is contended that the information was not sufficiently certain in the description of the property on which the trespass was committed. But it is not necessary to describe the premises in a proceeding of this nature as in forcible entry and detainer, where restitution of the premises is sought. In informations for malicious mischief, it has always been held sufficient to describe the premises as “a fishpond belonging to J. S.,” etc., as will be seen by a reference to the precedents in Chitty. It is not the law, even for the higher grade of offences, that the first indictment must be so distinct and minute as to constitute, without oral proof, a bar to a second. The identity of two accusations may be shown by parol. 1 Bishop's Cr. Prac., sect. 544; Horan v. The State, 24 Texas, 161. Such a degree of certainty as to entirely supersede proof of identity when the judgment is pleaded in bar, is not required in criminal proceedings. In this case there is sufficient certainty, considering the nature of the offence and the proof necessary to sustain the charge.
On the trial, defendant offered to prove by witnesses who had measured the land of the prosecuting witness, that the fence in question was not on the land of the prosecuting witness, but on a road that had been opened across the land described in the complaint, which road had been opened, used, and considered as a public highway for the preceding fifteen years, and that the part of the fence removed was that part which obstructed this road. This evidence was properly excluded. In the absence of any evidence tending to show a grant or dedication, acquiescence of the owner in the use of the land for a public road for a period not exceeding fifteen years does not authorize the presumption of an intention to dedicate to public use. The State v. Culver, 65 Mo. 607; Stacey v....
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State v. Prater
... ... including the previous conduct of defendant with reference to ... the depredations of the hogs and as to his inclosures, and ... the manner in which the hogs were [130 Mo.App. 360] killed ... Section 1989 was severely applied in the case of State v ... Guernsey, 9 Mo.App. 312; and, it seems, contrary to the ... principle of the decision in State v. Graham, 46 Mo ... supra. We do not refer to the ruling that Guernsey was ... rightly denied an instruction for acquittal if he had no ... malice or ill will against the prosecuting witness; but to ... the ... ...
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State v. Prater
...hogs and as to his inclosures, and the manner in which the hogs were killed. Section 1989 was severely applied in the case of State v. Guernsey, 9 Mo. App. 312; and, it seems, contrary to the principle of the decision in State v. Graham, 46 Mo., supra. We do not refer to the ruling that Gue......
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Muckel v. Rose
...exact place other than the county or city which constitutes the venue; and this is all that is required in an indictment. In The State v. Guernsey (9 Mo. App. 312), this court held that in an information for malicious trespass the premises need not be described with that certainty which wil......
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