Commonwealth v. Falvey , 108 Mass. 304 ( 1871 )

Ames, J.

This indictment is founded upon the 85th section of the Gen. Sts. c. 161, which appears to have been intended to provide generally for all cases of the wilful and malicious destruction or injury of the “ personal property of another,” not included in the specific provisions of the preceding sections of the same chapter. The construction contended for by the defendant would require us to hold that the statute legalizes the use of poison for the wilful and malicious destruction or injury of any personal property of another, not included under the description of “ horses, cattle or other beasts.” It is impossible to believe that such could have been the purpose of the statute. It is true that the terms of the section apply to injury to personal property “ in any manner and by any means not particularly described or men tioned” in that chapter; and that injury to a certain kind of property by poisoning is previously mentioned. But we do not think that the mere instrumentality by which, or the mere mode in which, the wrong is done, is the turning point in the construction of the section; and there is no occasion to set forth or prove the means used. Commonwealth v. Sowle, 9 Gray, 304. It appears to us that it was intended to prohibit any destruction or injury of personal property, not provided for in other parts of the chapter, whether accomplished by the use of poison or otherwise.

It was not necessary to state what kind of poison was used ; and the charge that the act was done unlawfully, wilfully and maliciously was sufficient, without a more distinct averment of guilty knowledge in the defendant. Commonwealth v. Galavan, 9 Allen, 271. The intent to poison the hens, and the placing of the poison where they were expected to, and did, find and eat it, was causing them to eat it. As the evidence was that the whole fourteen were killed, there is no impropriety in setting forth their collective value in the indictment. Hope v. Commonwealth, 9 Met. 134. Commonwealth v. Lavery, 101 Mass. 207. We find no variance between the averment and the proof, and no valid reason for sustaining the motion to quash the indictment.

Exceptions overruled.