The State v. McLelland
| Citation | 278 S.W. 981,312 Mo. 68 |
| Decision Date | 22 December 1925 |
| Docket Number | 26522 |
| Parties | THE STATE v. RAY McLELLAND, Appellant |
| Court | Missouri Supreme Court |
Appeal from Oregon Circuit Court; Hon. E. P. Dorris, Judge.
Affirmed.
Robert W. Otto, Attorney-General, and Wm. L Vandeventer, Assistant Attorney-General, for respondent.
(1) Malice may be inferred from the facts, and need not be proven. Sec. 3416, R. S. 1919; State v. Hirsch, 260 S.W. 557; State v. Brotzer, 245 Mo. 499; State v. Sillsbaugh, 250 Mo. 308. (2) It is not necessary that the act should have been done in anger, and consequently the court need not so instruct. Secs. 3414, 3416, R. S. 1919.
The defendant appeals from a judgment following conviction in Oregon County August 27, 1924, for maiming and maliciously wounding one Hereford bull, property of one J. A. Medlin. The information charged that the offense was committed June 7 1924.
The defendant and Medlin possessed adjoining farms in Oregon County, and Medlin's bull sometimes escaped into the defendant's pasture, and June 7, 1924, Medlin found the animal had been castrated. Defendant admitted that he had done it.
In defense the defendant said that he saw the whitefaced scrub bull in his pasture with some of his fine cows which he kept for breeding purposes; that he turned the animal out and drove it into another pasture and shut it in, but it kept returning. Defendant tried to find out who owned the bull but failed to do so. He said if he had known it belonged to Medlin he would have driven it home. The defendant and Medlin were friendly, and in testifying each spoke in the highest terms of the other. The defendant swore that the animal was of such poor stock an offspring from it would be worthless. He had fine stock of his own, including a Jersey bull. Being unable to find the owner or to keep the animal out, he concluded the only remedy was castration, which he performed. After he learned the animal belonged to Mr. Medlin he tried to see Medlin and arrange the matter with him, but Medlin refused to speak to him. On this evidence the defendant was found guilty, and his punishment assessed at a fine of $ 50.
I. The appellant has filed no brief in this court. The only errors assigned in the motion for new trial relate to the sufficiency of the evidence, the instructions given by the court, and failure of the court to instruct that the act complained of must have been done maliciously for the purpose of torture.
The instructions given by the court followed the information and the statute, and required a finding that the defendant, "feloniously, maliciously and cruelly," wounded the animal, etc.
Under the statute, Section 3414, Revised Statutes 1919, the offense is committed only when one shall wilfully and maliciously or cruelly maim, wound, etc., a domestic animal. Section 3416 provides that "it shall not be necessary to show on the trial of any offense under this article that the offense was committed from malice conceived against the owner of the property, or against the animal or property injured; but if the act was wrongfully, intentionally and wilfully done it may be inferred that it was done maliciously."
In State v. Brotzer, 245 Mo. l. c. 511-12, it was held construing Section 3416, that, in a prosecution for destroying property, "it was not the intention of the Legislature to dispense with malice as an element of the offense in malicious mischief statutes, but rather to authorize an inference of that element of the crime upon...
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