Rembert v. State

56 Miss. 280

• Court: Mississippi Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

Prosecution was commenced against the plaintiff in error, before a justice, for malicious mischief in shooting a horse. After conviction both before the justice and on appeal in the Circuit Court, there was a motion in arrest of judgment, on the ground that the affidavit described no offence under the statute. The Code, sect. 2708, enacts that “ any person who shall maliciously, either out of a spirit of revenge, or wanton cruelty, or mischievously, kill, wound, maim, injure,” etc., shall be punished as prescribed.

The affidavit charged the shooting here to have been done “maliciously,” but omitted the words, “out of a spirit of revenge, or wanton cruelty.”

Were these words essential? We think not. They are merely descriptive, or by way of definition of the word “ maliciously,” as here used. They are parenthetical, and may'be wholly omitted without altering the sense. It is just as if the language was : “Any person who shall maliciously, that is to say, either in a spirit of revenge, or wanton cruelty,” etc.

The definition of malicious mischief, at common law, is an injury done to the personal property of another, “ either out of a spirit of wanton cruelty, or black and diabolical revenge.” 4 Bla. Comm. 243.

The imputation of cruelty was, of course, applicable only to living things, and not to inanimate property.

The spirit of revenge would ordinarily, though not necessarily, be towards the owner.

In none of the common-law precedents of indictments for malicious mischief do we find an averment of the spirit of revenge, or wanton cruelty; though, as we have seen, these were the elements that made up the offence.

In Thompson’s Case, 51 Miss. 353, the defect was that the word “ maliciously,” as well as the words, “ out of a spirit of revenge, or wanton cruelty,” was omitted. This was held to be error.

The court below did not err in overruling the motion in arrest of judgment in this case.

Affirmed.