State v. Prater
| Decision Date | 14 April 1908 |
| Citation | 109 S.W. 1047,130 Mo.App. 348 |
| Parties | STATE OF MISSOURI, Respondent, v. PRATER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from McDonald Circuit Court.--Hon. F. C. Johnston, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
James A. Sturges for appellant.
Joseph S. Long, Prosecuting Attorney, for respondent.
The information is sufficient. It follows the language of the statute, section 1988, Revised Statutes 1899. State v Pruett, 61 Mo.App. 156; 22 Cyc. 378, 379, 380. Defendant had no right to torture, maim, wound or kill the hogs in order to protect his growing crop, for the reason that the statute sets out the manner and means by which a person shall protect his crop. R. S. 1899, sec. 3295.
--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 ten 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, follows the language of the statute and is sufficient. [State v. Pruett, 61 Mo.App. 156; State v. Hambleton, 22 Mo. 452; 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 the hogs were breachy and at different times for weeks prior to the killing, 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 statutes 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, Revised Statutes 1899. [Mann v. Williamson, 70 Mo. 661; Mackler v. Schuster, 68 Mo.App. 670.] Section 3299 of the statutes 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 damage 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 et al. 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, 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 subsequent trespass, the party damaged may take up the animal and hold the same until the owner pays for the damage and the cost of taking up and keeping it. We do not understand counsel for defendant to assert he had the right to kill the hogs because they were destroying his crop, but that the latter circumstance and his proposal to the owner of methods to prevent the damage to his crop, should have been received in proof as tending to show the killing, even though unlawful, was not criminal because it was free from the evil intent or state of mind which constitutes malice. We have found this question difficult to resolve. Many of the adjudications are not always consistent in principle and they construe diverse statutes. If cruelty to animals was a criminal offense at common law, which some writers deny, it was superseded so entirely in England by statutes as to pass out of view. [See note to State v. Robinson, 68 Am. Dec. 661.] Cases founded on the English statute known as the "Black Act," and on many American statutes, and other cases treating the offense as a common law crime, hold it is essential, in order to make out the offense, to prove the accused inflicted the injury on the animal out of malice to its owner; not necessarily a certain person, but whomsoever happened to be the owner; that a spirit of cruelty or revenge toward the animals, is not enough. To require proof of malice against the owner implies, that the statute construed was intended to protect the beasts as property instead of as creatures susceptible of suffering. The statutes we are dealing with, like much of the modern legislation on the subject, is designed for the protection of animals against cruelty. This appears from the circumstance that the owner of an animal may violate the statute by inflicting torture on it; for the language is "every person who shall wilfully, and maliciously or cruelly maim, wound, beat or torture a horse, ox or other cattle, whether belonging to himself or others, shall be deemed guilty of a misdemeanor." Moreover the next section of the statute provides that "it shall not be necessary to show, in the trial of an offense for malicious trespass or injury to property specified in this article (i. e., the article of the statutes dealing with offenses against property) that the offense was committed from malice conceived against the owner of the property or against the animal or the property itself; but if the act was wrongfully, intentionally and wilfully done, it may be inferred it was done maliciously." [R. S. 1899, sec. 1989.] Section 1988 creates two offenses in one of which the essential element is the "wilful and malicious" maiming, wounding, etc., and in the other "cruel" maiming, etc. [State v. Taylor, 186 Mo. 608, 614, 85 S.W. 564.] The question for decision must be considered with reference to the primary purpose of section 1988, which creates the offense, and of section 1989, which deals with the proof of malice. It is to be observed that neither section dispenses with malice as an essential ingredient of the offense, but both require proof of it. What section 1989 does is to relieve the State from proving it was cherished toward either the owner or the property. Nevertheless, said section, as well as the previous one, retains it as an element of the offense, as was decided by the Supreme Court in State v. Taylor, supra. But the section says malice may be inferred from certain...
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