1 U.S. 335
1 Dall. 335
1 L.Ed. 163
Supreme Court of Pennsylvania
July Term, 1788
The Defendant had been convicted in the county of Berks upon an indictment for maliciously, wilfully, and wickedly killing a Horse; and upon a motion in arrest of Judgment, it came on to be argued, whether the offence, so laid, was indictable?
Sergeant, in support of the motion, contended that this was an injury of a private nature, amounting to nothing more than a Trespass; and that to bring the case within the general rule of indictments for the protection of society, it was essential that the injury should be stated to have been perpetrated secretly, as well as maliciously; which, last he said was a word of mere form, and capable of an indefinite application to every kind of mischief. To show the leading distinction between Trespasses, for which there is a private remedy, and crimes for which there is a public prosecution, he cited Hawk. Pl. Cr. 210. lib. 2. c. 22. s. 4. And he contended that the principle of several cases, in which it was determined an indictment would not lie, applied to the case before the Court. 2 Stra. 793. 1 Stra. 679.
The Attorney General observed, in reply, that though he had not been able to discover any instance of an indictment at common law, for killing an animal, or, indeed, for any other species of malicious mischief; yet, that the reason of this was probably the early interference of the statute law to punish offences of such enormity; for, that in all the precedents, as well antient as modern, he had found the charge laid contra forman statuti, except in the case of an information for killing a dog; upon which, however, he did not mean to rely. 12 Mod. 337.
He said, that the law proceeded upon principle, and not merely upon precedent. In the case of Wade for embezzling the public money, no precedent was produced; and one Henry Shaillcross was lately condemned in Montgomery county, for maliciously burning a barn, (not having hay or corn in it) though there was certainly no statute for punishing an offence of that description in Pennsylvania. The principle, therefore, is, that every act of a public evil example, and against good morals, is an offence indictable by the common law; and this principle affects the killing a horse, as much, at least, as the burning an empty barn.
But, he contended, that there were many private wrongs which were punishable by public prosecution; and that with respect to these a distinction had been accurately established in 2 Burr. 1129. where it is said, that 'in such impositions or deceits where common prudence may guard persons against the suffering from them, the offence is not indictable, but the party is left to his civil remedy for the redress of the injury that has been done him; but where false weights and measures are used, or false tokens produced, or such methods taken to cheat and deceive, as people cannot by any ordinary care or prudence be guarded against, there it is an offence indictable.' Accordingly in Crown Cire. Comp. 231. 1 Stra. 595. S. C. Crown Circ. Comp. 24. are cases of private wrongs, and yet punished by indictment; because, as it is said in Burrow, common prudence could not have guarded the persons against the injury and inconveniency, which they respectively sustained. The same reason must have prevailed in an indictment at Lancaster (the draft of which remains in the precedent book of the successive Attornies General of this State) for poisoning bread, and giving it to some chickens; and it applies in full force to the case before the Court.
Independent, however, of these authorities and principles, the Jury have found the killing to be something more than a trespass; and that it was done maliciously forms the gift of the indictment; which must be proved by the prosecutor, and might have been controverted and denied by the Defendant. Being therefore charged, and found by the verdict, it was more than form; it was matter of substance.
The opinion of the Court was delivered on the 15th of July, by the Chief Justice.
M'Kean, Chief Justice.
The Defendant was indicted for 'maliciously, wilfully, and wickedly killing a horse,' and being convicted by the Jury, it has been urged, in arrest of judgment, that this offence was not of an indictable nature.
It is true, that on the examination of the cases we have not found the line accurately drawn; but, it seems to be agreed, that whatever amounts to a public wrong may be made the subject of an indictment. The poisoning of chickens; cheating with salse dice; fraudulently tearing a promissory note, and many other offences of a similar description, have heretofore been indicted in Pennsylvania; and 12 Mod. 337. furnishes the case of an indictment for killing a dog; an animal of far less value than a horse. Breaking windows by throwing stones at them, though a sufficient number of persons were not engaged to render it a riot: and the embezzlement of public monies, have, likewise, in this State been deemed public wrongs, for which the private sufferer was not alone entitled to redress; and unless, indeed, an indictment would lie, there are some very heinous offences, which might be perpetrated with absolute impunity; since the rules of evidence, in a civil suit, exclude the testimony of the party injured, though the nature of the transaction generally makes it impossible to produce any other proof.
For these reasons, therefore, and for many others which it is unnecessary to recapitulate, as we entertain no doubt upon the subject, we think, the indictment will lie.
Let judgment be entered for the Commonwealth.