State v. Clark , 86 Me. 194 ( 1893 )

Haskell, J.

The complaint, after proper averments as to* time and place, avers that the defendant, "then and there having' the custody and control of a certain horse, did unnecessarily fail to provide such horse with proper shelter and protection from* the weather, contrapacem et contra forrnam statuti.”

The statute, R. S.,c. 124, § 29, provides that, " every person-who cruelly overdrives . . any horse . . or, having the charge* or custody thereof, as owner or otherwise, unnecessarily fails to provide such animal with proper food, drink, shelter and. protection from the weather,” shall be punished.

The defendant, having been convicted below, contends that judgment should be arrested, because the complaint does not, charge him with having the charge and custody of the horse,, as owner or otherwise.

The words, "charge,” and "custody,” are frequently used as synonymous. The lexicographers give them as synonyms. They are placed in the statute, however, disjunctively, and, in such cases, need not be conjunctively averred, and cannot be disjunctively averred. The statute word, "custody,” therefore, in the complaint, sufficiently charges the defendant’s control of the horse. It is not necessary to define the nature of the defendant’s custody, "as owner or otherwise.” Those words were inserted for the very purpose of obviating any supposed necessity of that sort. The statute meant to reach persons having either the "charge or custody,” if there can be any distinction made in the meaning of those words, without requiring any further particulars to be averred or proved, as such a requirement might paralyze any attempt to punish apparent cruelty.

It is sufficient to charge and prove, that the defendant, having the custody of the animal, was guilty of the inhuman treatment prohibited by the statute. See the reasoning in State v. Haskell, 76 Maine, 399 ; Commonwealth v. Curry, 150 Mass. 509.

Exceptions overruled.