1 U.S. 352 - Respublica v. Teischer — 1 U.S. 335

¶1Indictment.

¶2An indictment will lie, for maliciously, wilfully and wickedly killing a horse.

¶3The 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 ?

¶4Sergeant, in support of the motion,

¶5contended, that this was an injury of a prvate nature, amounting to nothing more than a trespass ; and that to *3361 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. C. 210, lib. 2, c. 22, § 4. And he contended, that the principle of several cases, in which it was determined an indictment wouldnot lie, applied to the case before the court. 2 Str. 793; 1 Ibid. 679.

¶6*The Attorney-General observed,

¶7in 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 ancient as modern, he had found the charge laid contra for-man statuti, except in the case of an information for killing a dog — upon which, however, he did not mean to rely. 12 Mod. 337.

¶8He said, that the law proceeded upon principle, and not merely upon precedent. In the case of Wade, for embezzling the public money, no pre*353cedent was produced ;(a)and one Henry Shatteross was lately condemned, in Montgomery county, for maliciously burning a barn (not having bay or corn in it), though there was certainly no statute for punishing an offence of *354that 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.

¶9But 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 Avhere 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 of-fence indictable.” Accordingly, in CroAvn Circ. Comp. 231; 1 Str. 595; s. c. Crown Circ. Comp. 54, 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 inconvenience 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 attorney-generals of this state), for poisoning bread, and giving it to some chickens; and it applies in full force to the case before the court.

¶10Independently, 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 gist 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.

(a)

¶11 The following report of this case is derived from Mr. Rawle’s MSS.

¶12Commonwealth 1 Oyer and Terminer, Philadelphia, September 22d, 1780. v. > Francis Wade was indicted for that he, on the 16th of April Wade. ) 1785, was appointed a signer of the bills of credit emitted by virtue of the funding act, and authorised and intrusted to number and sign such bills of credit as should be delivered to him ; and so signed and numbered to redeliver to the treasurer; that the said Francis Wade afterwards, viz., on the 23d of April 1785, took upon himself the execution of the same office, and at divers times had and received from the treasurer 3400 sheets of the said bills of credit, amounting to the sum of 18,700?.; and the said Francis Wade was bound by the duty of the said office, the said bills to number and redeliver, &c. ; but the said Francis Wade did not redeliver 2750?., part of the same, but unlawfully, corruptly and fraudulently embezzled, and from the said treasurer withheld, and to his own use fraudulently disposed and converted the same, &c.: to the great nuisance of the commonwealth, in violation of the trust in him reposed, and against the peace, &c.

¶13To this indictment, the prisoner demurred generally, and the Attorney-General joined in demurrer.

¶14The case stood over from April 1786, to September 1786, and was now argued by Sergeant, for the prisoner, and Bradford, for the Commonwealth.

¶15Mr. Sergeant objected that this was not an indictable offence. A civil action is now ’.epending against Wade, and there are many instances of men making default in paying C7er public moneys, but there is no instance of an indictment. Co. Litt. 81. Non-user is an argument that an action does not lie. 4 Black. Com. 121. The first misprision is the mal-administration of public officers ; and this, he says, is punishable by impeachment, not by indictment. Blackstone’s law being much formed at the University, he is greatly inclined to the civil law, but he cites here the Julian code, which is a positive law. 31 Elis., c. 4. 1 Hawk, loco, Embezzlement. Now, if an indictment would lie at common law, for embezzling money, it might be supposed to lie also for embezzling the King’s Armor, yet it appears by 4 Black. Com., that it became necessary to pass a statute for the purpose. So of the stat. 21 Hen. VIII., relating to embezzlement by servants, which recites that it was doubtful at common law, whether embezzlement by the servant of a private man, amounted to felony. So of the stat. 7 Jac. I., c. 17, respecting embezzlement by wool-combers. But no indictment, independent of express statutes, in England, can be shown for this offence. The acts formerly made for emitting paper money, provided security with respect to those intrusted with the charge of it. By the act of 1773, an oath was required. This shows that the legislature was of opinion, that an indictment did not lie at common law.

¶16Mr. Bradford (Attorney-General), for the Commonwealth. — All violations of public property, all breaches of public trust, are indictable at common law. Thus, a nuisance ; assisting a servant to run away, is not indictable; seeus, of a prisoner of war, and it has been so determined in this court. 2 Hawk. 210, § 4. All capital crimes, all inferior crimes of a public nature, &c., are indictable ; 1 Hawk. 198, § 4; so tender a regard for the King, and religion, has the law, that an indictment for either of them is good — an indictment for converting the King’s money to his own use is maintainable. In Bucks county, one Petit was indicted for conspiring with others to feign a robbery; 2dly, sim ply for embezzling the public money; he was convicted on both counts, and punished by this court. 2 Roll. Ab. 83, § 1, a man may be indicted for keeping treasure trove; and on this authority, Blackstone builds, in vol. 4, p. 121, where he cites 3 Inst. 133: this is the case of a private person in possession of public money. A fortiori, where he is a public officer, and receives money in a public capacity. The stat. of 31 Eliz., c. 4, does no more prove that embezzling was not indictable at common law, than the stat*354utes making forgery capital, prove it Avas not indictable before. 1 Hawk. 167. In grant of every office, the condition of executing it faithfully is implied. The case of Bembridge (Annual Register 1788), was an indictment for being concerned in falsifying Lord Holland’s accounts. In 1 R. R. 2, there is a case quoted by a judge of a person, receiving money for buying archery, &c. 14 Vin. 369.

¶17Sergeant, in reply. — I shall produce the original authority on which all the subsequent dicta are founded, 27 Assis. 19, 20, where it appears that the case was adjourned. In 1 R. R. there was no judgment. Nor since Edw. III, 400 years ago, do we meet with any instance of an indictment. A constructive offence is not consonant to the principles of our law. As to treasure trove, it was made an indictable offence from the difficulty of detecting it. So stealing horses, sheep, &c., 1 Hawk. 210, is also founded on a case not adjudged. Petit’s ease, in the first count, laid a false and fraudulent swearing, with the view to deceive the country; this too was an ingredient in Bembridge's case. 1 Hawk. 167, was the case of a public officer; but in the indictment it does not appear that anything was paid, or payable to the prisoner.

¶18The Court, after adAusement, intimated their opinion very clearly, that the indictment lay, but as it was understood, postponed giving judgment, that the defendant might settle, which it is believed he did.1

¶20The opinion of the court was delivered on the 15th of July, by the Chief Justice.

¶21McKean, Chief Justice.

¶22The defendant was indicted for “maliciously, *355wilfully 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.

¶23It 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.(a)The poisoning of chickens ; .cheating with false 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 moneys, 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.

¶24For 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.

¶25Let judgment be entered for the Commonwealth. (b)