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act may be, is not a felony within the statute, unless the animal die; but the party may be indicted as for a misdemeanor. Where a man was thus indicted for administering sulphuric acid to eight horses, with intent feloniously to kill them, and it appeared that he had mixed sulphuric acid with the corn, and having done so gave each horse his feed; Park, J., held that this evidence supported the allegation in the indictment of a joint administering to all the horses. R. v. Mogg, 4 C. & P. 364, 19 E. C. L. Where the prisoner set fire to a cowhouse, and a cow in it was burned to death, Taunton, J., ruled *"}Qi 1 *that this was a killing of the cow within the repealed statute jyiJ 7 & 8 Geo. 4, c. 30, s. 16. R. v. Haughton, 5 C. & P. 559, 24 E. C. L.
Proof of malice and intent. Under the repealed statute of 9 Geo. 1, c. 22, it was necessary to show that the act was done out of malice to the owner; but the 7 & 8 Geo. 4, c. 30, s. 25, renders it an offence, whether the act be done from malice conceived against the owner or otherwise, and the same provision is contained in the 24 & 25 Vict. c. 97, s. 58, supra, p. 289. See 2 Russ. Cri. 930, 5th ed.
On an indictment under the statute 7 & 8 Geo. 4, c. 30, s. 16 (repealed), for maliciously wounding a mare, where no malice was shown towards any one, and it did not appear that the prisoner knew to whom the mare belonged, or had any knowledge of the prosecutor, it was contended that since the statute 7 Will. 4 & 1 Vict c. 90, s. 2 (repealed), no punishment could be enforced under the 7 & 8 Geo. 4, c. 30, s. 16, and, consequently, that the 25th section of that Act had no operation, and, therefore, that proof of malice was necessary. Patteson, J., held that it was not; and the prisoner being convicted, the judges were of opinion that the conviction was right. R. v. Tivey, 1 Denison, C. C. 63; 1 C. & K. 704, 47 E. C. L.
Although it is thus rendered unnecessary to give evidence of malice against any particular person, yet an evil intent in the prisoner must appear. Thus, in R. v. Mogg, supra, Park, J., left it to the jury to say whether the prisoner had administered the sulphuric acid (there being some evidence of a practice of that kind by grooms) with the intent imputed in the indictment, or whether he had done it under the impression that it would improve the appearance of his horses; and that in the latter case they ought to acquit him. In the same case the learned judge allowed evidence to be given of other acts of administering, to show the intent. And where the prisoner caused the death of a mare by inserting the handle of a fork into her vagina, and pushing it into her body, it was held there was sufficient malice to support an indictment under s. 40, though there was no evidence that the prisoner was actuated by ill-will towards the owner or spite towards the mare or by any motive except the gratification of his own depraved mind. The jury found that the prisoner did not in fact intend to maim, wound or kill the mare, but that knowing what he was doing would or might have that effect, he nevertheless did what he did recklessly and not caring whether tke mare was injured or not. R. v. Welch, 1 Q. B. D. 23; 45 L. J., M. C. 17. See ante, p. 24.
Offences under the Cruelty to Animals Act (39 & 40 Vict. c. 77, passed in order to regulate vivisection) may, where the penalty which can be imposed exceeds five pounds, be prosecuted on indictment at the request of the party accused.
Drugging animals is an offence punishable on summary conviction under 39 Vict. c. 13.
*392] *CHALLENGING TO FIGHT.
What amounts to..... 392
Proof of intent 392
What amounts to. v It is a very high offenoe to challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge, or even barely to provoke another to send such a challenge, or to fight, e. g., by dispersing letters to that purpose, containing reflections and insinuating a desire to fight. Hawk. P. C. b. 1, c. 63, s. 3. Thus a letter containing these words, "You have behaved to me like a blackguard. I shall expect to hear from you on this subject, and will punctually attend to any appointment you may think proper to make," was held indictable. R. v. Phillips, 6 East, 464; R. r. Rice, 3 East, 581. No provocation, however great, is a justification on the part of the defendant, although it may weigh with the court in awarding the punishment. Id.
On an indictment for challenging, or provoking to challenge, the
Jtrosecutor must prove—1st, the letter or words conveying the chalenge; and 2nd, where it does not appear from the writing or words themselves, he must prove the intent of the party to challenge, or to provoke to a challenge.
Proof of the intent. In general the intent of the party will appear from the writing or words themselves; but where that is not the case, as where the words are ambiguous, the prosecutor must show the circumstances under which they were uttered, for the purpose of proving the unlawful intent of the speaker. Thus words of provocation, as "liar," or "knave," though a mediate provocation to a breach of the peace, do not tend to it immediately, like a challenge to fight, or a threatening to beat another. R. v. King, 4 Inst. 181. Yet these, or any other words, would be indictable if proved to have been spoken with an intent to urge the party to send a challenge.1 1 Russ. Cri. 397, 5th ed.
1 A challenge to fight a duel out of the State is indictable, for its tendency is to produce a breach of the peace. State r. Farrier, 1 Hawks, 487; State v. Taylor, 1 Const. Rep. 107. The declarations of the second are admissible against the principal. State v. Dupont, 2 McC. 334. It U a question for the jury whether the party intended the challenge or not. Gibbon's Case, 1 South. 40; Commonwealth r. Levy, 3 Wheel. C. C. 245; Wood's Case, 3 Bog. Rec. 133. Parol testimony is admissible in explanation of the note. Commonwealth v. Hart, 6 J. J. Marsh. 120. Expressing a readiness to accept a challenge does not amount to one. Commonwealth r. Tibbs, 1 Dana, 524. Words insinuating a desire to fight with deadly weapons, as they tend to provoke such a combat, may amount to a misdemeanor at common law. Id. 524. Threats
Venue. Where a letter challenging to fight is put into the postoffice in one county, and delivered to the party in another, the venue may be laid in the former county. If the letter is never delivered, the defendant's offence is the same. R. v. Williams, 2 Camp. 506.
of great bodily harm, accompanied by acts showing a formed intention to put them in execution, if intended to put the person threatened in fear of their execution, and if they have that effect, and are calculated to produce that effect upon a person of ordinary firmness, constitute a breach of the public peace, which is punishable by indictment. State v. Benedict, 11 Vt. 236. a
Nature of cheats indictable at common law 393
Cheats affecting public justice ....... 393
Selling unwholesome provisions 393
False accounting, etc., by public officers 39.
False weights and measures 394
Cheating with cards, dice, etc 394
False tokens 395
What cheats are not indictable ....... 395
Nature of cheats indictable at common law. The question, whether or no a fraudulent transaction is indictable, as a cheat at common law, has become of less importance than it formerly was, because several cheats are now indictable by various statutes, especially by the 24 & 25 Vict. c. 96, ss. 88, et sea. (replacing the 7 & 8 Geo. 4, c. 29, s. 53), which include all that class of offences known as obtaining money and goods by false pretences.
The subjects of cheats at common law is very fully considered in 2 Russ. Cri. b. iv. c. 32, s. 1. The line is there very carefully drawn between such cheats and frauds as are of a public nature, and such as do not affect the public; and it is also strongly insisted on that the definition of a cheat indictable at common law must include the term, that it is one which affects, or may affect, the public.1 The following are the more important frauds at common law.
Cheats affeoting public justice. All cheats which are levelled against the public justice of the kingdom are indictable at common law. 2 East, P. C. 821. Many such cheats, however, come under the head of the offence of "False Personation," which will be separately considered. As to using false county court process, see 9 & 10 Vict. c. 95, s. 57, infra, tit. " Forgery."
Selling unwholesome provisions. The selling unwholesome provisions, 4 Bl. Com. 162, or the giving any person unwholesome victuals, not fit for man to eat, lucri causd, 2 East, P. C. 822, is an indictable offence. Where the defendant was indicted for deceitfully providing certain French prisoners with unwholesome bread, to the injury of their health, it was objected in arrest of judgment, that the indictment could not be sustained, for it did not apj)car that what was done was in breach of any contract with the public, or of any civil or moral duty; but the judges, on a reference to them, held the conviction right, R. v. Treeves, 2 East, P. C. 821. The defendant was indicted for supplying the royal military asylum at Chelsea
1 Reap. r. Teischer, I Dall. 338; Commonwealth e. Eckert, 2 Bro. 251; Resp. n. Powell, 1 Dall. 47. 8.