TITLE XIV. Malicious Mischief. § 594. Malicious mischief in general, defined. § 595. Specifications in following sections not restrictive of last sec tion. § 596. Poisoning cattle. § 597. Killing, maiming, or torturing animals. § 598. Killing, etc., birds in cemeteries. § 599. Killing seals. [Repealed.] § 600. Burning buildings, etc., not the subject of arson. § 601. § 602. Using gunpowder, etc., in destroying or injuring any buildings. $ 603. Limitation upon the operations of the preceding section. § 604. Injuries to standing crops, etc. § 605. Removing, defacing, or altering landmarks. § 606. Destroying or injuring jails. § 607. Destroying or injuring bridges, dams, etc. § 608. Burning or injuring rafts. Setting adrift vessels. § 609. Removing buoys and beacons. § 610. Masking or removing signals, or exhibiting false lights. § 611. Obstructing navigable streams. § 612. Depositing sand, dust, etc., in Humboldt Bay. § 613. Throwing overboard ballast, or obstructing navigation. § 614. Mooring vessels to buoys. § 615. Injuries to signals, etc., in United States survey. § 616. Destroying or tearing down notices, etc. § 617. Injuring or destroying written instrument. § 618. Opening or publishing sealed letters. § 619. Disclosing contents of telegraphic message. § 620. Altering telegraphic messages. § 621. Opening telegrams. § 622. Injuring works of art or improvements. § 623. Destroying works of literature, etc., in public libraries. $ 624. Breaking or obstructing water-pipes, etc. § 625. Drawing water from works after they have been closed. 594. Every person who maliciously injures or destroy any real or personal property not his own, in cases otherwise than such as are specified in this Code, is guilty of a misdemeanor. Malicious mischief.-Malicious mischief is the willful injury or de struction of personal property, from ill-will or resentment toward its owner, or out of a spirit of wanton cruelty or revenge-3 Dev. & B. 130, 110 Mass. 401; 3 Cush. 558. The essence of the offense is injury to prop erty-5 Parker Cr. R. 185; 26 Ohio St. 265; whether the possession te the property was rightful or wrongful-7 Barb. 9; 8 Humph. 37; 52 Ind. 478; 14 Kan. 296; 33 Me. 361; or, though the title to the property be ir. dispute between the parties-4 Moody & R. 431; but see 52 Ind. 478; and ownership need not be averred-101 Mass. 84; 32 Tex. 611; and see 43 id. 433; but an honest belief in title is a defense-14 Kan. 296; 62 Ind. 437; 14 Cox C. C. 5; especially where the trespass is the removal of fences-45 Ind. 388. So, consent of the owner is a defense-21 Me. 341; 11 Tex. 368. The injury must be such as to impair utility-2 Met. 21. At common law, the act of injury must be done with a breach of the peace-3 Vt. 344; 3 Tex. 312; 10 Ired. 17; or to the scandal of the pubfic-2 Cranch C. C. 259; 4 id. 483; or be marked by a malignant cruelty -52 Ind. 478. Must be willful.-Neither negligent injury, nor injury inflicted in hot blood will constitute the offense-3 Cush. 553; 3 Dev. & B. 130; 52 Ind. 478; 10 Iowa, 115; 1 Minn. 292; 51 Miss. 353; 12 Cox C. C. 607; the act must be willfully and maliciously done-1 Up. Can. Q. B. 155. The malice.-Malice is the gravamen of the offense, without which 72 N. C. 201; 3 Dutch. it would be mere trespass-43 Ala. 330; 44 id. 35 Ga. 190. There must 124; 49 Miss. 331; 51 id. 353; but see 37 Ala. 457; be malice toward the owner or possessor of the property-7 Ala. 728; 43 id. 330: 44 id. 380; 30 Ga. 325; 13 Ired. 33; 10 Iowa, 115; 40 Miss. 331; 64 N. C. 23; 79 id. 656; 41 Tex. 622; 3 Yerg. 278; 3 Heisk. 457; but see Tenn. 305; 26 Ohio St. 176; 1 Car. & K. 705; but it need not be express malice, nor need any general bad purpose or design be entertained15 Pick. 337; 9 Met. 410. A malicious injury is an injury committed willfully and wantonly and without cause or excuse-34 Cal. 48; 36 id. 255; 3 Story, 7; 1 Sum. 394; 2 id. 586; 3 Mason, 102; 4 id. 115; 5 id. 192; 23 Mo. 287; 122 Mass. 19; 12 Tex. 462; 25 id. 33. So, malignant cruelty irrespective of special malice is sufficient, if it shock or scandalize the community-4 Cranch C. C. 483; 28 Ga. 190; 26 Ohio St. 176; or if the act be done with the spirit of wanton cruelty or wicked revenge-3 Cush. 558; 44 Ala. 381. See 5 Parker Cr. R. 568; 64 N. C. 23; 43 Ala. 330. It is a question of fact-3 How. 292; 4 Barn. & C. 247; see 24 How. 552; and may be inferred from facts and circumstances-43 Ala. 335; 44 id. 381; 42 Ind. 354; 3 Yerg. 278; 13 Cox C. C. 121; as secretly cominitting the act in the night-time, or where the injury was peculiarly wanton5 Parker Cr. R. 568; 64 N. C. 23; 43 Ala. 330. It will be inferred from an unlawful act-5 Allen, 2; or from the instrument used-43 Ala. 335; or it may be negatived by proof of a friendly purpose-4 Car. & P. 363; or necessity-30 Ga. 325; 6 Jones, (N. C.) 276; 3 Cox C. C. 505. If the injury is not wanton, or done under belief of a right, without malice, it is not malicious mischief-3 Dev. & B. 130; 43 Ala. 335; 44 id. 381; 8 Humph. 37; 10 Iowa, 115; 64 N. C. 23; 3 Yerg. 276. Offense generally.-It is malicious mischief to do any act which will sustain an indictment for arson-32 Me. 183; so, setting fire to barrels of tar belonging to another constitutes the offense-2 Hawks, 460; so, knowingly meddling with a fire-alarm box-2 Met. 21; or cutting a rope attached to a banner-17 N. H. 543; or cutting off a few feet of cable-2 Met. 21; or tearing up notes-1 Dall. 338; or discharging a gun to annoy a sick person-9 Pick. 1; or indecently breaking into a room for the same purpose-5 Binn. 277; 15 Pa. St. 95; or putting irritating substances on a towel, and in a tub used by others-1 Wheel. C. C. 490; or cantharides in rum, is malicious mischief-2 Car. & K. 912; 1 Cox C. C. 282; 2 Moody & R. 531; but willfully and maliciously destroying the saddle-bags of a traveler-6 Humph. 283; or tearing down corn-5 Ired. 364; or pulling up cabbages, has been held not malicious mischief -6 Gray, 349. 595. The specification of the acts enumerated in the following sections of this chapter is not intended to restrict or qualify the interpretation of the preceding section. 596. Every person who willfully administers any poison to an animal, the property of another, or maliciously exposes any poisonous substance, with the intent that the same shall be taken or swallowed by any such animal, is punishable by imprisonment in the State prison not exceeding three years, or in the county jail not exceeding one year, and a fine not exceeding five hundred dollars. Hens.-Though hens are not beasts, yet poisoning them is indictable-108 Mass. 304; 1 Dall. 338. 597. Every person who maliciously kills, maims, or wounds an animal, the property of another, or who maliciously and cruelly beats, tortures or injures any animal, whether belonging to himself or another, is guilty of a misdemeanor. Cruelty to animals.—A public and scandalous cruelty to animals is an indictable offense distinct from malicious injury to animals-5 Rand. 630, whether inflicted by the owner or another-7 Allen, 579; 2 Cranch C. C. 259; 4 id. 483; 44 N. H. 392; 28 Ga. 190; 1 Aiken, 226; 7 Law Reporter N. S. 89. It has been made a statutory offense, 7 Allen, 570; 48 How. Pr. 435; 101 Mass. 34; 113 id. 458; 22 Minn. 271; see111 Mass. 408; 4 Hun, 441; 16 Abb. Pr. N. S. 73. Wanton cruelty to animals, whether his own or those of another, is indictable at common law-2 Cranch C. C. 259; 1 Aiken, 226; 7 Law Reporter N. S. 89; 4 Cranch C. C. 483; 44 N. H. 392; 28 Ga. 190. See Pol. Code, § 19, subd. 8. Malicious mischief.-A malicious injury to any beast, which may be the property of another, is indictable-8 Gratt. 708; 3 Vt. 344; 19 Wend. 419; but see 3 Tex. 316; 5 Dana, 277; as, for maliciously driving cattle from their range, 43 Tex. 467; 4 Tex. Ct. App. 549. Cattle includes asses-1 Moody C. C. 3; cows-5 Cowen, 258; 1 Mass. 58; 1 D 11. 335; geldings-1 Leach, 73; pigs-4 Leigh, 686; 49 Miss. 331; Russ. & R. C. C. 77; steers-2 Dev. & B. 35; 20 Vt. 537; hogs-10 Iowa, 115; 21 Wall, 300; 1 Leach, 73; and horses, mares, and colts-1 Dall. 335; 5 Cowen, 258; 20 Vt. 337; 22 Mo. 452; 1 Leach, 72; 2 East P. C. 1076. Tame buffaloes are not cattle-22 Mo. 457. Malicious injury to animals.-A malicious injury to animals is Indictable-4 Cranch C. C. 483; 28 Ga. 190; 26 Ohio St. 176; 8 Met. 232; 5 Denio, 277; 44 N. H. 392. Maiming or wounding an animal without killing it has been held not indictable at common law-3 Dutch. 124; 72 N. Č. 201; 2 East P. C. 1074; contra, 1 Wheel. C. C. 111; but it is an offense at common law to shoot or wound stock found trespassing on one's premises-19 Ill. 80. It is a distinct offense from the willful and wanton killing of animals-7 Tex. Ct. App. 78; id. 5. That the cattle were trespassing is no defense-19 Ill. 80: but the malice may be nega tived by showing that the trespassing animal was vicious and danger. ous to drive out-19 Ill. 80; 30 Ga. 325; 6 Jones (N. C.) 276; 3 Cox C. C. 505. In maliciously wounding a horse it is not necessary to prove the use of an instrument-11 Cox C. C. 125; a permanent injury must be inflicted-1 Car. & K. 539; so, pouring acid into the eyes of a mare and blinding her is indictable-1 Moody C. C. 205. The willful disfigurement or maiming a horse is indictable-8 Bush, 1; S. C. 1 Green Č. R. 293. The word wound must be taken in its ordinary sense-Law R. 1 C. C. 115. Shaving the mane and cropping the tail was held not a disfigurement-Cheves S. C. 157; contra, 2 Humph. 39; but driving a nail into the frog of a horse's hoof is a maiming, even if curable-Russ. & R. 16. Malicious killing.-It is indictable to maliciously and willfully kill animals of another, with intent to injure him-3 Tex. Ct. App. 31; 8 Bush, 1; S. C. 1 Green C. R. 293; or to wantonly kill an animal where the effect is to disturb and molést a family-9 Gratt. 708. To destroy the horse of another is an indictable offense-1 Dall. 335; 1 Tenn. 305; but see 6 Humph. 283; id. 285. Killing a horse with malice toward the bailee constitutes the offense, though there be no malice toward the owner-3 Heisk. 262; S. C. 1 Green C. R. 521. So, killing hogs in defendant's crop, if the fence is not hog-proof, is an offense-3 Tex. Ct. App. 228. Dogs are protected-13 Ired. 33; 2 Ind. 377; 34 N. H. 523; but not in Virginia-17 Gratt. 617. As to South Carolina, the question is still in doubt-14 Rich. 203; but going to a porch and shooting a dog, to the terror of the people, is indictable-8 Gratt. 708. What a dog has previously done is no defense for wantonly killing him, when not in flagrante delictu-5 Tex. Ct. App. 475. 598. Every person who, within any public cemetery or burying-ground, kills, wounds, or traps any bird, or destroys any bird's nest other than swallows' nests, or removes any eggs or young birds from any nest, is guilty of a misdemeanor. 599. That section five hundred and ninety-nine of the Penal Code is hereby repealed. [In effect March 12th, 1880.] 600. Every person who willfully and maliciously burns any bridge exceeding in value fifty dollars, or any building, snow-shed, or vessel, not the subject of arson, or any stack of grain of any kind, or of hay, or any growing or standing grain, grass, or tree, or any fence, not the property of such person, is punishable by imprisonment in the State prison for not less than one nor more than ten years. Burning.-Where a landlord burned shocks of corn on the land after the expiration of the lease, it was held malicious mischief-81 Ill. 478. Destroying any barrack, cock, crib, rick, or stack, is malicious mischief-76 Ill. 274; so, of setting fire to barrels of tar belonging to another person-2 Hawks, 46. 601. Every person who maliciously, by the explosion of gunpowder or other explosive substance, destroys, throws down, or injures the whole or any part of any building, by means of which the life or safety of a human being is endangered, is guilty of felony. 602. Every person who willfully commits any trespass by either 1. Cutting down, destroying, or injuring any kind of wood or timber standing or growing upon the lands of another; or, 2. Carrying away any kind of wood or timber lying on such lands; or, 3. Maliciously injuring or severing from the freehold of another anything attached thereto, or the produce thereof; or, 4. Digging, taking, or carrying away from any lot situated within the limits of any incorporated city, without the license of the owner or legal occupant thereof, any earth, soil, or stone; or 5. Digging, taking, or carrying away from any land in any of the cities of the State, laid down on the map or plan of such city, or otherwise recognized or established as a street, alley, avenue, or park, without the license of the proper authorities, any earth, soil, or stone; or, 6. Putting up, affixing, fastening, printing, or painting upon any property belonging to the State, or to any city, county, town, or village, or dedicated to the public, or upon any property of any person, without license from the owner, any notice, advertisement, or designation of, or any name for any commodity, whether for sale or otherwise, or any picture, sign, or device intended to call attention thereto; or, 7. Entering upon any lands owned by any other person or persons whereon oysters or other shell-fish are planted or growing; or injuring, gathering, or carrying away any oysters or other shell-fish planted, growing, or being on any such lands, whether covered by water or not, without the license of the owner or legal occupant thereof; or destroying or removing, or causing to be re |