State v. Johnson

• Decision Date: 03 October 1898
• Parties: STATE v. JOHNSON
• Court: Wyoming Supreme Court

54 P. 502

7 Wyo. 512

STATE v. JOHNSON

Supreme Court of Wyoming

October 3, 1898

RESERVED questions from the District Court, Uinta County. HON. DAVID H. CRAIG, Judge.

B. A Johnson was charged with malicious trespass under the statute. There was an agreed statement of the evidence, and the district court reserved four questions for the decision of this court as follows:

1. Is the act of driving a herd of sheep across the land of another, which is uninclosed, unfenced, unimproved, and entirely in a state of nature, a trespass under the laws of this State?

2. Is such an act punishable under Sec. 61 of the Crimes Act Session Laws, 1890?

3. Is such driving a malicious trespass under said section either with or without notice from the owner forbidding such driving across?

4. Does the information in this case, under the statement of facts as agreed upon charge any offense under the laws of this State?

The facts stated are in brief that the defendant in driving a band of sheep from a dipping corral to a neighboring railroad station, drove them over and across certain uninclosed unimproved, and uncultivated land of the prosecuting witness, and that the defendant did not stop to graze them thereon for any greater length of time than sheep do graze while being driven from place to place by the usual and ordinary method of so driving them.

John W. Sammon, for the State.

Every unwarranted entry by a person or his cattle on the lands of another is a trespass, whether the lands are inclosed or not. (Wells v. Howell, 19 Johns, 385; Billen v. Paisley, 4 L. R. A., 840; French v. Lesswell, 13 Or. 418; Bedden v. Clark, 76 Ill. 338; Harrison v. Adamson, 76 Ia. 337; Otis v. Morgan, 61 Ia. 712; Delaney v. Erickson, 11 Neb. 533.) Indictments will lie for willful and malicious injury to real estate and property not subject to larceny. (Desty's Cr. L., Sec. 144; Wharton's Cr. L., Secs. 1072-82; Hall v. Crawford, 5 Jones, N.C. 30.) One having knowledge of the rights of the landowner, who proceeds against the protest of the owner, heedlessly, recklessly, and carelessly to injure may be prosecuted for a wrongful injury to property. (Dailey v. State, 24 L. R. A., 724.) It will be presumed that defendant is bent on mischief, when, after receiving notice not to do so, he drives a large band of sheep on complainant's land. The law does not require notice to be given to one about to commit a trespass.

Hamm & Arnold, for defendant.

In this section of country where the fence laws are such as to deny a recovery for destruction of crops in the absence of a lawful fence, it is not a civil trespass for animals to roam upon uninclosed lands. (Buford v. Hontz, 133 U.S. 320; Merritt v. Hill, 37 P. 893 (Cal.); Fant v. Lyman (Mont.), 22 P. 120; Walker v. Bloomingcamp (Or.), 43 P. 175; Delaney v. Erickson, 10 Neb. 492; Nuckolls v. Garet, 12 Colo. 361; Kerwhacker v. R. R. Co., 3 O. St., 172; Seely v. Peters, 5 Gilm., 130.) But even if the act of defendant amounted to a civil trespass, it contains no element of a crime. (State v. Tinker, 45 P. 91.)

CORN, JUSTICE. POTTER, C. J., and KNIGHT, J., concur.

OPINION

CORN, JUSTICE (after stating the facts as above).

If this were a civil action for damages, a part of the questions would become important which in this case, involving only the construction of a criminal statute, it will be unnecessary for us to decide. It is very well settled that the mere roaming of cattle and other domestic animals upon uninclosed private lands in the Western country does not constitute a trespass. A distinction has been insisted upon in the case of sheep, which are not permitted to roam at will, but are herded and directed by a shepherd; and it is maintained that when they are driven upon such lands for the purpose of pasturage, it constitutes a trespass for which damages may be recovered by the owner of the land. A decision of the latter question is not required by the facts of this case. The statute invoked by the prosecution is one of a very large class both in England and this country, and provides that "whoever maliciously or mischievously injures, or causes to be injured, any property of another or any public property, is guilty of malicious trespass." Under similar statutes in England, it has been held that in order to constitute the offense the act must be done from malice against the owner. Russ & Ry. C. C., 373; 2 East P.C. 1067; 3 Chitty Cr. Laws, 1132. The doctrine has not been carried to that extent in this country, but the authorities are nevertheless substantially agreed that the malice necessary to constitute the offense is something more than the malice which is ordinarily inferred from the willful doing of an unlawful act without excuse. The statutes were not intended to make every willful and wrongful act punishable as a crime, but they are devised to reach that class of cases where the act is done with a deliberate intention to injure. In Com. v. Williams, 110 Mass. 401, which was a prosecution for a willful and malicious injury to a building, the court say, "The jury must be satisfied that the injury was done out of a spirit of cruelty, hostility, or revenge. This element must exist in all those injuries to real or personal property which are enumerated and made criminal in the several statutes. The injury must not only be willful, that is intentional and by design, as distinguished from that which is thoughtless or accidental, but it must in addition be malicious in the sense above given. The willful doing of an unlawful act without excuse, which is ordinarily sufficient to establish criminal malice, is not alone sufficient under these statutes. The act, although intentional and unlawful, is nothing more than a civil injury, unless accompanied with that special malice which the words 'willful and malicious' imply." In Duncan v. The State, 49 Miss. 331, which was an indictment for malicious mischief in killing a hog, the jury returned a verdict, "We, the jury, find the accused guilty of the willful and unlawful killing of the hog, but not out of a spirit of mischief, revenge, or wanton cruelty;" and this was held to be an acquittal of the accused of the charge in the indictment. So in Wright v. The State, 30 Ga. 325, which was an indictment...