RESPUBLICA verʃus TEISCHER.
T
HE Defendant had been convicted in the county of Berks upon an indictment ƒor maliciouʃly, wilƒully, an wickedly killing a Herʃe: and upon a motion in arreft of Judgment, it came on to be argued, whether the offence, fo laid, was indictable?Sergeant, in fupport of the motion, contended that this was an injury of a private nature, amounting to nothing more than a Trefpafs; and that to bring the cafe within the general rule of
indictments for the protection of society, it was essential that the injury should be stated to have been perpetrated seceretly, 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 shew the leading distinction between Trespasses, for which there is private remedy, and crimes for which there is a public prosecution, he cited Hawk, Pl. Cr. 210. lib. 2.c.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. 2Stra. 793. 1 Stra. 679.
The Attorney General obferved, in reply, that though he had not been able to difcover any inftance of an indictment at common law, for killing an animal, or, indeed, for any other fpecies of malicious mifchief ; yet, that the reafon of this was probably the early interference of the ftatute law to punifh offences of fuch enormity ; for, that in all precedents, as well antient as modern, he had found the charge laid contra ƒormam ʃtatuit except in the cafe of an information for killing a dog;–upon which, however, he did not mean to rely. 12Mod. 337.
He faid, that the law proceeded upon principle, and not merely upon precedent. In the cafe of Wade for embezzling the public money, no precedent was produced ; and one Henry Shalleroʃs was lately condemned in Montgomery county, for maliciouʃly burning a barn, (and having hay or corn in it) though there was certainly no ftatute for punifhing an offence of that defcription in Pennʃylvania. The principle, therefore, is, that every act of a public evil example, and againft good morals, is an offence indictable by the common law; and this principle affects the killing a horfe, as much, at leaft, as the burning an empty barn.
But, he contended, that there were many private wrongs which were punifhable by public profecution ; and that with refpect to thefe a diftinction had been accurately eftablifhed in 2 Burr. 1129. where it is faid, that “ in fuch impofitions or deceits where common ” prudence may guard perfons againft the fuffering 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 token produced, or ſuch methods taken to cheat and deceive, as people cannot by any ordinary care or prudence by guarded againſt, there it is an offence indictable.”–Accordingly in Crown Cire. Comp. 231. 1 Sira. 595. S. C. Crown Cire. 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 is 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 cafe 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 giſt of the indictment; which muſt be proven 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 the Chief Juſtice.
M’Kean, Chief Juſtice. The Defendant was indicted for “maliciouſly, willfully, 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 cafes 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 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 cafe 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 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 without 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.