Wiggin v. State

• Decision Date: 15 May 1922
• Docket Number: 1064
• Citation: 28 Wyo. 480,206 P. 373
• Parties: WIGGIN v. STATE
• Court: Wyoming Supreme Court

206 P. 373

28 Wyo. 480

WIGGIN v. STATE

No. 1064

Supreme Court of Wyoming

May 15, 1922

ERROR to the District Court, Goshen County, WILLIAM C. MENTZER Judge.

Orrin G. Wiggin was convicted of willfully and maliciously killing a head of neat cattle, and brings error. Reversed and remanded.

Reversed and remanded.

Kinkead Ellery & Henderson, for plaintiff in error.

Malicious killing within the meaning of the statute must have been done out of a spirit of cruelty, hostility or revenge directed against the owner of the animal killed. (7123 C. S.) 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. (7146 C. S State v. Johnson, 7 Wyo. 512.) The Johnson case is an interpretation of Section 7146 C. S. but the same principle should apply in an interpretation of the effect of Section 7123 C. S. The instruction of the trial court defining malice is in conflict with the doctrine of the Johnson case. Cases decided under statutes similar to 7123 and 7146 since the decision in the Johnson case seem to establish beyond question that the doctrine of that case is sound. (State v. Mussey, (Vt.) 18 A. 895; State v. Leslie, (Ia.) 115 N.W. 897; People v. Jones, 24 Ill. 482; State v. Minor, (N. D.) 117 N.W. 528; Bouvier, 3d Ed. 2069.) It was essential that the word malice as used in the statute be correctly defined in an instruction, since it was a vital element of the offense charged, and the malice must have been directed against the owner. (People v. Jones, supra; Brown v. State, 26 O. St. 176; State v. Berry, (S. D.) 177 N.W. 1012; State v. Lightfoot, 78 N.W. 41; People v. Petheran, 31 N.W. 188; Hobson v. State, 44 Ala. 380; Chappell v. State, 35 Ark. 345; State v. Beekman, 27 N.J.L. 130; Shirely v. State, 22 S.W. 42; State v. Tarton, 118 N.W. 707.) The trial court erroneously refused defendants requested instruction No. 12 which is believed to be a correct statement of the law. (Gardner v. State, 196 P. 750.) The ownership of the S.E. O. brand was proven but the ownership of the animal described in the information was not otherwise proven. While the brand is prima facie evidence of ownership the statute requires such evidence to be established and corroborated with other evidence, which was not done. (3095 C. S.) The court erred in denying defendant's motion for an instructed verdict on the ground that the state had not proved ownership of the animal killed. (Reg. v. Forsythe, 4 N.W. T. 319; State v. Wolfley, 75 Kans. 406.) The court erred in overruling defendants motion to suppress evidence procured under the search warrant. (Constitution, Art. 1, Section 4. 24 R. C. L. 709; Reed v. Rice, 19 Am. Dec. 122; State v. Slamm, 87 Am. St. Rep. 711.) The affidavit upon which the search warrant was issued was made on information and belief and did not contain allegations of fact tending to show upon what deponent based his belief. (In Re Coke Co., 253 F. 605; State v. Peterson, (Wyo.) 194 P. 342; U. S. v. Slusser, 270 F. 818.) The search warrant under which the sheriff took possession of the hide introduced in evidence was void and the search thereunder illegal and invalid.

W. L. Walls, Attorney General, Vincent Carter, Deputy Attorney General and W. A. James, Assistant Attorney General, for defendant in error.

Section 7123 C. S. was not in effect at the time the Johnson case was decided, and that case was predicated upon a prosecution brought under 7146 C. S. It is contended that there is a similarity between the two statutes. The distinguishing element in both offenses as defined by Section 7123 and 7146 is malice, one a misdemeanor and the other a felony. Section 7123 was enacted as a substitution for 4990 R. S. 1899. There is a marked distinction between the two offenses, that upon comparison will sustain Instruction No. 8 given by the trial court in the present case. The law implies malice where one deliberately injures another in an unlawful manner. (Gallahan v. State, 28 Tex.App. 247; Alt v. State, 88 Neb. 259; Caldwell v. State, 55 Tex. Crim. 164.) Malice embraces an act wrongfully and intentionally done without just cause and does not imply malevolence or enmity toward any individual. (Pennington v. Meek, 46 Mo. 217.) The ownership of the brand was proven and the animal in question was identified by several witnesses before the killing and the hide was identified by witnesses after the killing as belonging to the animal killed. The brand belonged to Frederick Brothers, a fact clearly established by the evidence. The ownership of the animal was established within the meaning of Sections 3095 and 7474 C. S. Reg v. Forsythe, cited by plaintiff in error is a quotation from the dissenting opinions in the case. State v. Wolfley did not approve of the doctrine of Reg v. Forsythe, noted in plaintiff's brief. We refer the court to the following contra decisions. (Territory v. Chavoy, 30 P. 903; State v. Cardelli, 10 P. 433; State v. Wolfley, 12 Ann. Cas. 412.) The affidavit upon which the search warrant was issued was sufficient under the statute, 7610 C. S. The warrant was issued upon probable cause and described the premises to be searched and the goods and chattels which were the object of the search.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

The defendant below, Orrin G. Wiggin, was tried and convicted of wilfully and maliciously killing a head of neat cattle, contrary to the provisions of Section 7123 of the Wyoming Compiled Statutes 1920 reading as follows:

"Whoever wilfully and maliciously kills any horse, mule, sheep, goat, or neat cattle, the same being the property of another, shall be deemed guilty of a felony, and upon conviction thereof shall be imprisoned in the penitentiary for not more than fourteen years."

The defendant was sentenced to from 3 to 6 years in the penitentiary, and the case has been advanced for hearing on account of the showing that the defendant has, since his conviction in February, 1921, been incarcerated therein.

1. The defendant asked an instruction to the effect that the jury must find that the killing of the animal was done through malice, hatred or ill will toward George and Henry Frederick, or that the killing was so cruel that malice could be inferred therefrom. Other similar instructions were asked. All these were refused and error is alleged by reason thereof. The court gave, on this subject, over the objection of the defendant, the following instruction:

"You are instructed that malice includes not only anger, hatred and revenge, but every other unlawful and unjustifiable motive. Malice is not confined to ill-will toward an individual, but is intended to denote an action flowing from any wicked and corrupt motive, a thing done with a wicked mind, where the fact has been attended with such circumstances as evince plain indications of a heart regardless of social duty, and fatally bent on mischief; hence malice may be implied or inferred from any deliberate and cruel act against another, or his property, which shows an abandoned and malignant heart."

The case of State v. Johnson, 7 Wyo. 512, 54 P. 502, is a case involving malicious mischief, and the court in speaking of the malice essential to be shown in such cases, although the act there involved was only a misdemeanor, said in part:

"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 wilful doing of an unlawful act without excuse. The statutes were not intended to make every wilful 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. * * * And it seems to be generally held that in order to bring an offense under the head of malicious mischief it must appear that the mischief was itself the object of the act, and not that it was incidental to some other act lawful or unlawful."

The principle laid down in that case that the malice in such cases is something more than what is ordinarily understood as legal malice, but is that malice as it is more ordinarily understood in common speech, has been the settled rule of law in this state since 1898, and we see no reason for departing therefrom. Statutes punishing injury or destruction of animals have practically uniformly been construed as in affirmation or enlargement of the common law on malicious mischief, and we see no good reason for construing our statutes differently. We think that the history of the legislation in this state on the subject of killing animals clearly shows that the malice referred to in Section 7123 was intended to mean more than the mere wilful doing of an unlawful act without excuse. The authorities are substantially agreed that the malice essential for conviction is not malice directed toward the animal injured or destroyed, and particularly is that true in our state in view of the statute punishing cruelty to animals. Nor do we think that it was in contemplation of the legislature to make a case where a person is guilty of larceny of an animal at the same time a case of malicious and wilful killing an animal simply because the animal was killed. The killing must be wilful and malicious in order to convict under Section 7123. As said in the case of State v. Johnson, supra, the mischief must itself be the object of the act and not merely incidental to some other act lawful or unlawful. (See also Hampton v. State, 78 Tenn. 639, 10 Lea (78 Tenn.) 639.) A somewhat similar question to that at bar arose in Johnson v. State, 61 Ala. 9, where the defendant Johnson was apparently guilty of larceny of...