State v. Prater

• Decision Date: 14 April 1908
• Parties: STATE v. PRATER
• Court: Missouri Court of Appeals

109 S.W. 1047

130 Mo. App. 348

STATE v. PRATER

St. Louis Court of Appeals. Missouri.

April 14, 1908.

1. ANIMALS — CRUELTY TO ANIMALS — CRIMINAL PROSECUTIONS — INFORMATION — SUFFICIENCY — "CATTLE."

Under Rev. St. 1899, § 1988 (Ann. St. 1906, p. 1332), making it a misdemeanor to willfully and maliciously or cruelly maim, wound, beat, or torture any horse, ox, or other "cattle," an information charging that accused unlawfully, maliciously, and cruelly did maim, wound, and torture to death three hogs is sufficient.

2. SAME — TRESPASSING — FENCING LAWS — EFFECT.

The common-law rule requiring the owner of domestic stock to confine it is abrogated by Rev. St. 1899, §§ 3295, 3296 (Ann. St. 1906, pp. 1870, 1871), under which a landowner cannot recover for incursions of his neighbor's stock if he does not have a lawful fence, but these sections refer to outside and not division fences, and in view of section 3299 (page 1873), relating to division fences and the duty to construct such fences, if a division fence is not maintained by adjoining owners, their common-law obligations are revived.

3. SAME — KILLING TRESPASSING ANIMALS — PLACE OF ENTRY — EFFECT — STATUTORY PROVISIONS.

In view of the omission from Rev. St. 1899, § 3296 (Ann. St. 1906, p. 1871), giving a right of action for damages, of the provisions of Rev. St. 1845, c. 79, § 4, authorizing the killing of stock on the third incursion when the landowner has a lawful fence, a landowner is criminally liable for the killing of stock of another, no matter where it gets into his fields, at least unless it becomes necessary to kill it in the attempt to drive it out.

4. SAME — MALICIOUSLY OR CRUELLY WOUNDING ANIMALS — STATUTORY PROVISIONS — CONSTRUCTION.

Rev. St. 1899, § 1988 (Ann. St. 1906, p. 1332), making it a misdemeanor to unlawfully and maliciously or cruelly maim, wound, beat, or torture any horse, ox, or other cattle, was intended to prevent cruelty to animals, and creates two offenses, in one of which the essential element is the willful and malicious maiming, etc., and in the other the cruel maiming, etc.

5. SAME — "WILLFULLY AND MALICIOUSLY" MAIMING ANIMALS.

Under Rev. St. 1899, providing that it shall not be necessary to show in the trial of an offense for malicious injury to property specified in that article that the offense was committed from malice conceived against the owner of the property or against the animal or property itself, but if the act was wrongfully, intentionally, and willfully done, it may be inferred it was done maliciously, the state is relieved from proving that malice was held toward either the owner or the property, but in both sections 1988 and 1989 (Ann. St. 1906, pp. 1332, 1333) general malice is retained as an element, and though it may be inferred from certain facts it is not necessarily to be so inferred, and the prohibited offense is not "willfully and maliciously" committed unless the animal is maimed, beaten, or tortured from an evil impulse springing from a state of mind rendering the perpetrator indifferent to the sufferings of the animal and the wrongful quality of the act.

6. SAME—WILLFUL INJURY—NATURE—"WILLFULLY."

"Willfully" is a word generally construed to mean intentionally instead of accidentally, but occasionally in cases dealing with certain offenses, among which is willfully maiming stock, etc., it carries the idea of evil intent.

7. SAME—EVIDENCE—ADMISSIBILITY—MALICE.

In a prosecution for maliciously maiming stock, the jury should determine the question of malice, not alone from the wrongful, willful, and intentional character of the killing, but from all relevant facts, such as the previous conduct of accused with reference to depredations of the animals, the nature of the animal, the manner in which the animals were injured or killed. Hence evidence of the breachy nature of the animal, and what transpired between their owners and accused prior to the offense, is admissible, though a subsequent tender of payment after the animals were killed would not be admissible.

8. CRIMINAL LAW — INSTRUCTIONS ON EVIDENCE NOT ADMITTED.

In a criminal prosecution, where evidence of certain conduct of accused bearing on the question of malice was not admitted, an instruction telling the jury that such conduct was no defense was improper.

Appeal from Circuit Court, McDonald County; F. C. Johnston, Judge.

Samuel Prater was convicted of an offense, and he appeals. Reversed and remanded.

J. A. Sturges, for appellant. Jos. A. Long, for the State.

GOODE, J.

An information in two counts was filed against this defendant, of which the first charged that he "unlawfully, maliciously and cruelly did maim, wound, and torture to death" three hogs belonging to J. N. Taylor, by worrying said three hogs with dogs, and by striking and beating and wounding to death the said three hogs with some blunt instrument of an unknown description, from the effect of which striking, beating, and wounding the hogs died. In the second count the defendant is charged, in substantially the same words, with maiming, wounding, and torturing to death six hogs, by striking and beating them with some blunt instrument, and by shooting them so that from the effect of the shooting, striking, and beating the hogs died. Defendant's own testimony and the other evidence showed he killed 10 hogs in the manner charged in the information; that is to say, he set his dogs on several, and afterwards beat them over the skull with a hammer until they died, caught others and clubbed them over the head until they were dead, and shot others. Defendant admitted the killing was intentional, but said it was done in defense of his property. The information was based on section 1988 of the Revised Statutes of 1899 (Ann. St. 1906, p. 1332), follows the language of the statute, and is sufficient. State v. Pruett, 61 Mo. App. 156; State v. Hambleton, 22 Mo. 453; State v. Graham, 46 Mo. 490; State v. Goss, 74 Mo. 592. The information in this case is similar to those approved in the cases cited, and particularly the one in State v. Pruett, wherein, it may be noted, the court decided the statute declared on, though it only mentions "a horse, ox, or other cattle" as the animals against which the offense may be committed, includes hogs and all other domestic quadrupeds. The present information is on the same statute.

The principal assignment of error relates to the rejection of certain offers of proof made by defendant in the lower court and the treatment of malice as an element of the offense in instructing the jury. Defendant offered to prove that at different times for weeks prior to the killing the hogs were breachy and had ravaged his crops; that he proposed to buy the hogs from Taylor, their owner, requested the latter to pen them, offering to buy the feed required to keep them in a pen, or to pen and feed them himself while his crops were growing, and after the killing offered to pay for them, but the owner rejected all his proposals. Besides excluding proof of these facts, the court, at the request of the state, gave an instruction in which they were recited in substance, and the jury advised that if it found defendant killed the hogs as charged in the information, the offered facts were no defense. There is no clear proof of where the hogs got into defendant's field, or whether they entered from the owner's field through a division fence or from the range through defendant's outside fences. An attempt was made by the state to show the condition of defendant's fences, but on objection of his attorney the testimony was excluded as irrelevant to the issues. Certain evidence indicates the hogs sometimes entered defendant's field through a gate left open between his and Taylor's fields; whereas other evidence indicates they had been turned on the range by Taylor and entered defendant's field from the outside. It has been held that section 3295 of the Revised Statutes of 1899 (Ann. St. 1906, p. 1870), which describes what kind of a fence an owner shall inclose his land with, refers to outside and not to division fences. Reddick v. Newburn, 76 Mo. 423. A landowner who has not inclosed his land with lawful fences cannot recover for incursions of stock as provided by section 3295, Rev. St. 1899. Mann v. Williamson, 70 Mo. 661; Mackler v. Schuster, 68 Mo. App. 671. Section 3299 of the Revised Statutes of 1899 (Ann. St. 1906, p. 1873) deals with division fences and it has been held that if a division fence is not maintained by the adjoining owners, their common-law obligations are revived. O'Riley v. Diss, 41 Mo. App. 184. At common law the owner of domestic stock was bound to confine it, and was liable for any damages done to crops of other persons by the stock. This rule has been abrogated by our statutes, and it is the duty of a landowner to have a lawful fence if he would recover damages done by the incursions of his neighbor's stock. Id. We have referred to these matters in order to indicate the respective rights and duties of the defendant and Taylor, the owner of the hogs as between themselves. But no matter where the hogs got into defendant's field, he had no right to kill them. The proprietor of adjoining premises may be prosecuted for killing a trespassing beast, at least unless, in the attempt to drive it out, it becomes necessary to kill it. Snap v. People, 19 Ill. 80, 68 Am. Dec. 582; State v. Butts, 92 N. C. 784. Our statutes support this conclusion. In the statutes of 1845 (Rev. St. 1845, c. 79, § 4), dealing with inclosures, it was provided that for the third incursion of animals where the proprietor had a lawful fence, he might kill them without being answerable. That section corresponds with section 3296 of the present statutes, which, however, omits the right to kill, and only provides that if the proprietor has a lawful fence, the owner of the trespassing animal shall make reparation for any damage done by its first trespass, and that for any...