State v. Toney

• Decision Date: 01 July 1881
• Docket Number: CASE No. 1055.
• Citation: 15 S.C. 409
• Court: South Carolina Supreme Court
• Parties: STATE v. TONEY.

15 S.C. 409

STATE

v.TONEY.

CASE No. 1055.

Supreme Court of South Carolina.

Jul. 16th, 1881.

1. It is not necessary to a conviction of malicious trespass for injuring a cow, to prove malice towards the owner of the cow. State v. Doig, 2 Rich. 179, recognized and followed.

2. The capacity of an infant under fourteen years of age to commit the crime of malicious trespass is a question to be determined from the facts of the case; independent evidence of such capacity is not essential.

Before THOMSON, J., Sumter, February, 1881.

This was an indictment against Wesley Toney, Reece Toney and Lawrence Toney, for malicious trespass. The report of the presiding judge is as follows:

“The said defendants were indicted for malicious trespass. The act charged was the beating and wounding, against the act of assembly, of a cow of D. E. Keels, the prosecutor. The proof was that on November 1st, 1880, the cow was seen in Wesley Toney's lot or cow-pen. The prosecutor said he was thirty or forty yards from the cow-pen and not seen. He saw some one at the cow-pen—his cow was in the pen. Lawrence Toney and another son of Wesley Toney were there— two dogs there—W. Toney was outside of pen; one or both of the dogs had hold of the cow. The cow was very gentle and tame *** cow lost parts of both ears from biting, and she could not eat for some time. W. Toney did not seem to do anything. Reece Toney struck cow with a rail; one of the dogs had hold of cow. Reece and the other son were setting dogs on; clapping their hands and halloaing, and keeping cow in pen, &c.

Wesley Toney, for the defence, said: The cow had been in his field, supposed all night, and he directed Reece Toney to drive the cow out of the field. The cow when driven jumped into the cow-pen—he told Reece Toney to open the bars of the lot, and let the cow out, and the cow then went away. The fences of the field and cow-pen were from four feet to neck or chin high. He said the dogs got on the cow, but denied it was by his orders.

The age of Lawrence Toney was not proved, but it seemed to be admitted he was not fourteen years of age. He was a well-grown boy, apparently at least over twelve years. The facts in the main were not in dispute; the questions were made under requests to charge presented to the court.

The jury were charged that this was a statutory offence, and the act of assembly was to be construed strictly. That where by the act the intent constitutes an element of the offence, it must be proved. That express proof of malice against the owner of the animal was not required. That if the prosecutor's cow was willfully beaten and wounded, and the act was unlawful and without excuse, and the owner of the animal known, that the offence of malicious trespass was complete. And the jury were asked as an illustration, would the defendants have done the same injury to a cow of a son or brother, the ownership of the animal being known? That the malice intended by the act could be inferred from the circumstances proved without proving direct malice to the owner of the animal.

In the case of Lawrence Toney it was left to the jury to determine if malice did not supply age. The prisoner was before them in court, his conduct and acts had been stated in the testimony. Was he conscious that his act was wrongful, or could he discern between right and wrong? If so, he was responsible. That the law looked to capacity for evil as a measure of responsibility as much or more than an infant's having attained the age of fourteen years. Did his acts and conduct show this capacity? Then if guilty he was responsible. The jury found Wesley Toney not guilty. Lawrence Toney and Reece Toney guilty.”

Lawrence Toney and Reece Toney appealed to this court upon the following exceptions:

1. His Honor was requested to charge the jury that it was necessary for the state to prove malice on the part of the defendants against the owner of the property alleged to have been injured. His Honor refused to make this charge, and instructed the jury that if at the time the cow was injured they “believed that the defendants knew the owner and connected in their minds the owner with the animal,” it was sufficient. The defendants excepted to this as error of law.

2. His Honor was requested to charge the jury that the defendant, Lawrence Toney, was entitled to an acquittal, as according to the testimony he was an infant under the age of fourteen years, and there was no evidence rebutting the presumption of law that he was incapable of committing a crime. His Honor refused to make this charge and the defendants excepted.Mr. Jos. H. Earle for appellant.

There must be proof of malice towards the owner. 14 Rich. 249;2 Rich. 179; 2 Bish. Cr. L., § 997; 2 East Cr. L. 1072; 2 Leach 594, 595; 3 Dev. & Bat. 130; 7 Ala. 728;12 Ired. 329;3 Yerg. 278;1 Minn. 292;10 Iowa 115. Lawrence was improperly convicted. 1 Bish. Cr. L, § 368; 4 B. C. 23; Broom's Leg. Max. 233; Archb. Crim. Pl. (8 th ed.) 11.

Mr. Solicitor J. J. Dargan, contra.

The opinion of the court was delivered by

SIMPSON, C. J.

In this case the defendants were indicted for malicious trespass. The act charged was the beating and wounding, against the act of assembly, a cow of Keels, the prosecutor. The presiding judge was requested to charge the jury that it was necessary for the state to prove malice on the part of the defendants against the owner of the property alleged to have been injured. He was further requested to charge that the defendant, Lawrence Toney, was entitled to an acquittal, as, according to the testimony, he was an infant under the age of fourteen years, and there was no evidence rebutting the presumption of law that he was incapable of committing crime. His Honor refused to charge as requested. The defendants were convicted, and Reece Toney and Lawrence Toney have appealed.

The appeal assigns as error in the judge his refusal to charge as requested upon the the two points stated.

The terms used in the act under which these defendants have been indicted and convicted are “unlawfully,” “willfully” and “ maliciously.” These terms are not synonymous, and were not intended to express the same idea. They have each a different signification and import different degrees of guilt. As...