CHAPTER XXXIX.

MALICIOUS MISCHIEFS AND TRESPASSES ON PROPERTY.

1.. Whoever willfully or maliciously kills, wounds, maims, disfigures, or poisons any domestic animal, or exposes any poisonous substance with intent that the life of any such animal should be destroyed thereby, shall be punished by imprisonment not more than four years, or by fine not exceeding five hundred dollars.1

2. Any person who unlawfully, willfully, and with intent to injure the owner, takes away any horse, saddled or harnessed, or attached to any vehicle, and standing in any highway or other place, shall be punished therefor, by a fine not exceeding one hundred dollars, or imprisonment in the county jail not more than three months.2

3. Whoever, in any other case, willfully and mischievously takes or uses any boat or vehicle, or takes, drives, rides, or uses any horse, ox, or other draft animal, the property of another, without the consent of the owner, or person having the legal custody, care, and control of the same, shall be punished by fine not exceeding three hundred dollars, or by imprisonment for a term not exceeding one year; but this and the preceding section do not apply to any case of taking the property of another with intent to steal the same, nor when such property is taken under a claim of right, or with the presumed consent of the owner, or person having the legal control thereof."

4. Whoever willfully or maliciously injures, removes, or destroys any dam, reservoir, canal, trench, or their appurtenances, or the gear or machinery of any mill or manufactory; draws off the water from any mill-pond, reservoir, canal, or trench; destroys or injures any engine or its apparatus for the extinguishment of fire, or any posts, glass caps, wires, or other materials used in the construction and operation of any telegraph; removes, injures, or destroys any public or toll-bridge, or places any obstruction on such bridge or any public road, with intent to injure any persons or property passing thereon,

1 R. S. c. 127, § 1.-2 R. S. c. 127, § 2.-3 R. S. c. 127, § 3.

shall be punished by imprisonment not more than three years, or by fine not exceeding five hundred dollars.*

(a) An indictment for maliciously breaking down a dam, alleged to belong to a person named, cannot be sustained, except on proof that such person had some interest in the dam.5

5. Whoever willfully or maliciously, without consent of the owner, cuts away, lets loose, injures, or destroys any boom, raft of logs, or other lumber, vessel, gondola, scow, or other boat, fastened to any place of which he is not the owner or legal possessor, shall be punished by fine not exceeding five hundred dollars, and imprisonment less than one year; and shall also be liable to the person injured in an action of trespass for double the damages by him sustained."

6. Any person who moors any vessel, boat, scow, or raft, to any buoy or beacon, placed by the United States. in any of the navigable waters of this State, or shall in any manner make the same fast thereto, shall forfeit and pay fifty dollars; and any person who shall willfully destroy any such buoy, or beacon, shall forfeit one hundred dollars, and be imprisoned in the common jail three months. Said forfeitures may be recovered by complaint or action of debt, before any court competent to try the same; one-half to the plaintiff or informer, and the other half to the county in which the trial is had."

7. Whoever willfully and maliciously cuts down, destroys, or otherwise injures any shrub or tree for ornament or use; breaks, injures, or defaces any fence; throws down or opens any gates or bars; injures, destroys, or severs from the land of another, any produce thereof or thing attached thereto, such articles not being his own, shall be punished by imprisonment less than one year, and by fine not exceeding one hundred dollars.

(b) The girdling of fruit-trees is not punishable at common law; but only by statute.9

(bb) An indictment must charge the offense in the words of the statute, or others equivalent; "unlawfully and maliciously" is not equivalent to "willfully and maliciously."

79a

(c) In a complaint for cutting trees on land not his own, the

4 R. S. c. 127, § 4.5 State v. Weeks, 30 Me. 182.-6 R. S. c. 127, § 5.-7 R. S. c. 127, § 6.8 R. S. c. 127, § 7.—9 Brown's Case, 3 Me. 177.-9a State v. Hussey, 60

Me. 410.

allegation that the cutting was without the consent of the owner is material, 10

8. Whoever advertises his wares or occupation by painting notices of the same on, or affixing them to fences or other private property, or on rocks or other natural objects, without the consent of the owner, or if in the highway or any other public place, without the permission of the mayor of cities, selectmen of towns, or assessors of plantations, shall be punished by fine of ten dollars for each offense, to be recovered on complaint, one-half to the prosecutor, and one-half to the town in which the offense is committed.11

9. Whoever willfully commits any trespass, or knowingly authorizes or employs another to do so, by entering the garden, orchard, pasture, cranberry ground, or improved land of another, with intent to take, carry away, destroy, or injure the trees, shrubs, grain, grass, hay, fruit, vegetables, turf, or soil thereon, shall be punished by a fine not exceeding twenty dollars, and imprisonment not more than thirty days.12

10. Whoever willfully enters and passes over any garden, yard, or other improved field, after being expressly forbidden so to do by the owner or occupant thereof, shall be punished by fine not exceeding five dollars, or imprisonment not more than ten days."

13

11. Whoever, at any time, enters any orchard, fruitgarden, vineyard, or any field or inclosure, kept for the purpose of cultivating any domestic fruit therein, without the consent of the owner or occupant thereof, and with the intent to take, injure, or destroy anything there growing; and whoever willfully cuts down, injures, or destroys any tree, shrub, or vine, within any of the places before named, or injures any building, trellis, frame-work, or any appurtenance belonging to or upon any of said places, shall be punished, on conviction thereof, by a fine of twenty dollars and costs, and imprisonment not less than thirty days, and in default of payment of said fine and costs, he shall be further imprisoned at the rate of two days for each dollar of said fine and costs. All fines im

10 Hall's Case, 5 Me. 409.-11 R. S. c. 127, § 8.-12 R. S. c. 127, § 9.-18 R. S. c. 127, § 10.

posed by this section, when collected, shall be paid to the overseers of the poor, for the use of the poor of the town where such conviction is had.14

12. The owner of any such place, or any person employed in the cultivation of, or rightfully in the possession thereof, may arrest any person found violating any of the provisions of the preceding section, and carry him before any magistrate having jurisdiction of the offense, within the county where the arrest is made.15

13. If any person, except a highway surveyor acting within the scope of his lawful authority, willfully commits any trespass by cutting, destroying, or carrying away any timber or wood, on the land of another; by digging up, taking, and carrying away therefrom any earth, stone, grass, corn, grain, fruit, hay, or other vegetables, or carrying away from any wharf or landing-place any goods in which he has no interest, he shall be punished by impris onment not more than two months, and by fine not exceeding fifty dollars.16

14. Whoever willfully and maliciously injures or removes any monument erected, or tree marked as a boundary of any land or town; destroys, defaces, or alters the marks thereon, made for the purpose of designating such boundary; injures or defaces any mile-stone or guide-board erected on any public way or railroad; removes, defaces, or injures any sign-board, lamp, or lamp-post; or extinguishes any lamp on any bridge, street, way, or passage, shall be punished by imprisonment less than one year, and by fine not exceeding one hundred dollars.17

15. Whoever willfully and maliciously destroys, injures, or defaces any building or fixture attached thereto, without consent of the owner; or destroys, injures, or secretes any goods, chattels, or valuable papers of another, shall be punished by imprisonment less than one year, or by fine not exceeding five hundred dollars; and also be liable to the party injured, in an action of trespass, for the amount of injury so done, and for a further sum, not

14 R. S. c. 127, § 11.-15 R. S. c. 127, § 12.-16 R. S. c. 127, § 13.-17 R. S. c. 127, § 14.

exceeding, in all, three times such amount, as the jury shall deem reasonable.18

(d) In an indictment under this section for maliciously injuring a dwelling-house, without consent of the owner, where, at the time of the commission of the offense, the house injured was not in the possession of the owner, but a tenant at will under him, it may be described as the house of the tenant. 19

(e) Where the indictment alleged that the accused beat in the windows and broke the glass of a dwelling-house, not having the consent of the owner, it is not incumbent on the government, after proving the injury to the building, to introduce any direct evidence that there was no consent of the owner; but being a matter peculiarly within the knowledge of the accused, the burden is upon him to show that he had such consent.19 It need not allege the amount of injury.19

(f) An indictment on § 15 may be maintained, although the facts proved might have supported an indictment under chapter 119 for arson.20

(g) It is not necessary that the offender be prosecuted criminally, prior to the commencement of a civil action by the party injured.20

(h) In such action, evidence of the general good character of the defendant is inadmissible; as is also the evidence that the plaintiff was habitually intemperate.20

(i) On the trial of a respondent on an indictment for secreting a book of records of a certain town, a juror, belonging to the town whose records are alleged to have been secreted, was rightfully excluded from the panel trying the case. 21

(j) The knowledge of some of the inhabitants of a town, that a book of the town's records was left with the defendant, is not a defense to the charge of subsequently secreting it,21

(k) Where one knowingly has an article, belonging to another, and, upon being called on for it, asserts that it is not in his possession, and denies all knowledge of it, this is competent evidence to be laid before the jury on a trial against him for secreting the article. 21

(1) And even if kept openly with his own articles of the same kind, that would not necessarily determine, that it was not secreted from its owner.21

(m) In a criminal prosecution under § 15, for willfully destroying one's property without his consent, it is immaterial whether the property came rightfully or wrongfully into possession of the defendant.22 A wrongful taking is not an essential element in that class of offenses.22

18 R. S. c. 127, § 15.-19 State v. Whittier, 21 Me. 341.-19a State v. Billington, 83 Me. 146.-20 Thayer v. Boyle, 30 Me. 475.-21 State v. Williams, 30 Me. 484.12 State v. Pike, 33 Me. 361.