Citation Numbers: 5 Park. Cr. 185
Judges: Emott
Filed Date: 7/15/1861
Status: Precedential
Modified Date: 1/13/2023
This was an action, for false imprisonment, tried before me at the Dutchess Circuit. The plaintiff, was arrested on a warrant issued by the defendant, who was a justice of the peace, and, although objecting to the jurisdiction, was tried, convicted and sentenced by a Court of Special Sessions, held by the defendant, to a fine, and to be imprisoned until it was paid. He was released upon habeas corpus, and subsequently brought this action.
The warrant of arrest and the commitment recited the offense tó be, that the prisoner, the present plaintiff, “ did willfully and maliciously unhook the traces of the harness on a span of horses and then hitched to the wagon then owned or in the possession of” one Luddington.
At the trial of this action, the imprisonment was defended on the ground that, by the evidence before the magistrate,
Assuming that a Court of Special Sessions has no jurisdiction to try a man for malicious mischief, or for the act charged in these proceedings, if it were a criminal offense, we are all clearly of opinion that this was a case of false imprisonment ; and that evidence of what took place on the trial in the Sessions, tending to make out an assault, was irrelevant, and that it was properly struck out of the case, and excluded from the consideration of the jury. We do not think it necessary to discuss the proposition which was advanced, that inasmuch as the defendant could have arrested the plaintiff and held him to bail for committing an act of malicious mischief, he can therefore justify proceeding to a trial which resulted.in a conviction and sentence. We are also of opinion that the evidence which was objected to upon the question of damages, was properly received. The utmost which this objection in volves, would be an amendment of the complaint.
The offense of malicious mischief has been recognized in this State as a misdemeanor at common law, although the multiplicity of the statutes to punish such offenses in England has led to the impression that the offense is created by statute^ The language used by Blackstone (4 Black. Com., 243), in the passage cited by the defendant’s counsel, to prove that malicious mischief is an offense at common law, would perhaps lead to that conclusion. But the line which separates a mere trespass from a criminal act, has been by no means clearly defined. In The People v. Smith (5 Cow. R., 258), an indictment for maliciously killing a cow was sustained. In Loomis v. Edgerton (19 Wend. R., 419), maliciously breaking to pieces a sleigh was held to be a criminal offense. On the other hand, in Kilpatrick v. The People (5 Denio R., 277), maliciously breaking two windows in the house of another person, was held not to be a criminal offense. In the latter case stress was laid upon the fact that the act complained of was not committed secretly, nor in the night time, and was not an act of cruelty to a domestic animal. In England, as has been already intimated, the limits of this class of offenses, and their punishment, are defined by numerous statutes, so that but few, if any, cases can be found which were decided by the common law. The statutes of Great Britain make many trespasses
The context and connection of the words in the statute are also sufficient, to my mind, to show that the trespasses referred to are acts of trespass upon lands. The statute confers jurisdiction upon Courts of Special Sessions to try various specified acts of wrong to persons and property, which are crimes by common law. and by statute, and which would be included within willful trespasses, if that term should.be construed in its ordinary or full legal sense. In the clause in question, the word trespass is directly connected with the freehold, in such a way as to show that the meaning of the whole clause is, any willful trespass upon the freehold, or any severance of property therefrom, which is not a larceny. This is to me the
The statute was intended to refer to certain trespasses which are made misdemeanors by the statute of misdemeanors. (2 R. S., 693, § 15.) The language of the latter statute is identical with that before us, describing the offenses referred to as willful trespasses, and all the trespasses which the statute of misdemeanors makes criminal, are trespasses upon real estate. It is these willful trespasses, made criminal by positive statute., which are triable in Courts of Special Sessions, and not a totally different class of acts which might be described as acts of malicious mischief, and which are only criminal when they come within the cases or the definition of acts of malicious mischief, and are thus more than merely willful trespasses.
If, therefore, the act described in this commitment, were an act of malicious mischief at common law,, it would not be included within the provisions of this statute, or the jurisdiction which it confers upon Courts of Special Sessions.
But I must add that it is very clear to me that the act specified by the proceedings was not an act punishable criminally as a malicious mischief. Even if it had been committed while •the owner of the horses, or any other person was in the wagon, it could hardly have been construed a malicious mischief, because no harm appears to have ensued. It is not alleged that any injury was done to the horses or the wagon, the whole charge being that the harness of the horses was maliciously unhooked. The essence of the crime of malicious mischief, is the injury to property, and this must be marked by some peculiar features to convert it from a trespass into a crime. An act which, however wanton and dangerous, is not, and does not result in the destruction, or even the injury of property, is not an act of malicious mischief or a misdemeanor, under this head of the law.
I am of opinion that the warrant of arrest, and the commitment, recited no offense whatever, and that if any were' committed, taking all the facts proved, or alleged to have been proved at the trial before the magistrate, it was a constructive
The plaintiff is entitled to judgment upon this verdict, in my opinion, beyond any question.
Judgment for plaintiff.