Loomis v. Edgerton & Sykes

19 Wend. 419

Opinion

By the Court,

Cowen, J.

The principle of the case of The People v. Smith, 5 Cowen, 258, and of the cases there cited, is in point, that malicious mischief done to any kind of property is a misdemeanor. The general principle is there laid down, and exemplified by various cases; and must be maintained. In addition to the cases there noticed, par ticularly, by Mr. Justice Woodworth, is one cited by Mr. Dollier, the counsel for the prosecution of State v. Council, 1 Overton’s R. 305, which was an indictment under a statute of Tennessee for wilfully and maliciously killing a horse* Kennedy and Powell Js., agreed that the offence was indictable at common law, though the point does not seem to have been necessarily involved. This point was also much and very ably considered in State v. Briggs, 1 Aik. 226, by the supreme court of Vermont, who show very satisfactorily that nothing is to be inferred against the offence being one at common law, from the circumstance that malicious mischief is punishable in England by statutes, which are so universally relied on by the cases. Hutchinson, J. said the statutes were so ancient and the punishments so severe, that they were of course resorted to, and the common law thus lost sight of, though the statutes were intended as a mere increase of its penalties. Id. 229. The Commonwealth v. Eckert, 2 Brown, 248, 251, Penn. R., is also in point. The cases, I admit, are not entirely uniform, for in Brown’s case, 3 Greenl. 177, the malicious girdling of fruit trees was held not indictable except by statute. This would be a sad exception to the general wisdom of the common law. I am happy to find the balance of authority decidedly the other Way. Brown’s case seems to have passed without adverting to the American cases, though several of them had already held a different doctrine.

We are clear that the warrant in the case at bar recited a criminal offence. We need not, therefore, examine the second point.

Judgment for the defendants.