The indictment contained two counts. In the first the grand jury of the county of Monroe accuses the defendant of the crime of "unlawfully, willfully, feloniously and maliciously destroying and injuring personal property, committed as follows: The said Justus Knatt, on the 17th day of June, in the year of our Lord 1892, at the town of Webster, in this county, did, unlawfully, willfully, feloniously and maliciously destroy and poison unto death one bull and four cows, of the value, in the aggregate, of about two hundred and twenty-five dollars, of the property of Mary J. Burnett, contrary to the form of the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity."
The second count is in substantially the same language, except it charges the destruction of the personal property to be in violation of section 654 of the Penal Code.
To the indictment the defendant interposed a demurrer, upon the ground that the facts stated in the indictment constitute misdemeanors as defined by section 660 of the Penal Code, and are within the exclusive jurisdiction of a Court of Special Sessions; that neither of said offenses has ever been removed to the grand jury by virtue of a certificate, or according to the provisions of section fifty-seven of the Code of Criminal Procedure; and that the grand jury of the Court of *Page 312 Oyer and Terminer had no jurisdiction to find and present the indictment. The demurrer was overruled, and the case was called for trial in the Monroe County Court of Sessions. The defendant's counsel then objected to the court's proceeding with the trial, upon the ground specified in the demurrer. The objection was overruled and the trial proceeded, resulting in a conviction of the crime as charged in the indictment. A motion was then made in arrest of judgment upon the same ground, which was denied.
Our examination of the case has led us to conclude that there is but one question presented which requires consideration in this court, and that pertains to the jurisdiction of the grand jury of the Court of Oyer and Terminer to find the indictment.
Section fifty-six of the Code of Criminal Procedure gives to Courts of Special Sessions, subject to the power of removal, exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties, enumerated in the section, in which is included cruelty to animals. Section fifty-seven provides that, upon filing with the magistrate before whom is pending a charge for any of the crimes specified in the last section, a certificate of the county judge of the county, or of any justice of the Supreme Court, that it is reasonable that such charge be prosecuted by indictment, all proceedings before the magistrate shall be stayed, and the district attorney shall present such charge to the grand jury.
Section 660 of the Penal Code is included in title sixteen under the head of "Cruelty to Animals," and provides as follows: "A person who unjustifiably administers any poisonous or noxious drug or substance to an animal, or unjustifiably exposes any such drug or substance with intent that the same shall be taken by an animal, whether such animal be the property of himself or another, is guilty of a misdemeanor." It must be conceded, we think, that the provisions of this section constitute a misdemeanor specifically enumerated in section fifty-six of the Code of Criminal Procedure, and is, therefore, within the exclusive jurisdiction of the Court of *Page 313 Special Sessions, unless the case be removed therefrom by a certificate provided for in section fifty-seven, and, inasmuch as no such certificate was procured, it follows that the grand jury had no jurisdiction to indict the defendant under this section of the Code. But, as we have seen, the indictment was founded upon section 654 of the Penal Code. That section, so far as applicable, provides that "a person who unlawfully and willfully destroys or injures any real or personal property of another, * * * in a case where the punishment is not specially prescribed by statute, is punishable as follows:
"1. If the value of the property destroyed, or the diminution in the value of the property by the injury is more than twenty-five dollars, by imprisonment for not more than four years.
"2. In any other case, by imprisonment for not more than six months, or by a fine of not more than two hundred and fifty dollars, or by both such fine and imprisonment.
"3. And in addition to the punishment prescribed therefor, he is liable in treble damages for the injury done, to be recovered in a civil action by the owner of such property, or the public officer having charge thereof."
The defendant was convicted of having "destroyed and poisoned unto death" the cattle of Mary J. Burnett, of the value of about two hundred and twenty-five dollars. It is contended that the act for which the defendant has been convicted was a misdemeanor as defined by section 660 of the Penal Code, and that it is not included in section 654, for the reason that that section, by its terms, has reference only to offenses not otherwise provided for. We do not so read the provision. A person who unlawfully and willfully destroys or injures the property of another, "in a case where the punishment is not specially prescribed by statute, is punishable as follows." In other words, the provisions of this section apply to all cases in which the property of another has been unlawfully and willfully destroyed or injured, except in a case where the punishment has been specially prescribed by statute. By referring *Page 314 to the provisions of section 660, it will be observed that the punishment in that case has not been specially prescribed. The poisoning of animals has been made a misdemeanor, but no punishment is specially prescribed therefor. Other sections in the same title specially prescribe a punishment, as, for instance, in section 662, the keeping of milch cows in unhealthy places and feeding them with food producing unwholesome milk, is punishable by a fine of not less than fifty dollars, or imprisonment not to exceed a year, or both; and in section 664, the fighting of birds and animals is punishable by a fine of not less than ten dollars and not more than one thousand dollars, or by imprisonment for not less than ten days nor more than one year, or by both. But for poisoning animals, under section 660, no special punishment is prescribed. It is made a misdemeanor, and punishment takes place under the general provisions of the statute providing that "a person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary, or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both." (Penal Code, section 15.) It will, therefore, readily be seen that section 660 does not apply to a case where punishment is specially prescribed, and for that reason it is not brought within, or in conflict with, the provisions of section 654.
It is said that "almost every crime against property involves in some sense its destruction or injury. The crime for arson, for instance, involves nearly always the willful and unlawful destruction of the property of another; but it cannot be supposed for a moment that such an offense is included within the scope of this section." Very true; but the reason that arson is not included within the scope of this section is that the provisions of the Code constituting the crime specially prescribe the punishment, and this section, by the terms thereof, does not apply to cases where the punishment is specially prescribed. *Page 315
It is contended that the provisions of section 654 do not refer to animals; that animals are treated in the later sections. But those sections have reference to cruelty to animals. Under the former section, the gravamen of the act is the unlawful and willful destruction of the property of another. Under section 660 the gravamen of the offense is the cruelty to animals by the unjustifiable administering to them poisonous or noxious drugs. The destruction of or injury to property is not a necessary element in the latter offense. The property need not be that of another. A person may be liable, under the provisions of the act, for cruelty to his own animals; he may be liable, even though the animal be of no value. It is the cruelty that is prohibited, not the destruction of the property. Under the former section cruelty is not an ingredient of the crime. It is an unlawful and willful destruction of or injury to the property of another. The provision is general, and we apprehend embraces all kinds of property, including animals, with a single exception, and that is, where other punishment is specially prescribed by statute.
This construction is in harmony with the other provisions of the Penal Code, and provides a punishment adequate for the crime. If one steals property from another of the value of twenty-five dollars and upwards, it is punishable by imprisonment as for a felony; if less than twenty-five dollars in value, the punishment is only for a misdemeanor. So far as the owner is concerned, if his property is destroyed, he suffers the same loss as if it had been stolen from him. The two crimes differ only in the fact that where property is stolen the person committing the crime usually does it for the sake of gain; but where he willfully destroys the property of another, it is usually done through hatred, malice and a desire for revenge. In committing cruelty to animals, the person is controlled by very different motives. Usually by some desire to punish the animal upon which the cruelty is inflicted; and this is as liable to be done upon his own animals as upon those of another. In this case the evidence very satisfactorily shows that the defendant *Page 316 was not actuated by any desire to punish the animals poisoned; they had done him no harm; they had not trespassed upon his premises, nor done any act to incur his displeasure or to stimulate his cruelty, but the evidence does show that he entertained very bitter feeling toward the Burnetts, and that he was seeking an opportunity to revenge himself upon them. He had procured bluing and daubed it upon their buildings; he had threatened to burn their barns and to poison their cattle, all for revenge for injuries which he claims he had suffered at their hands. It was to injure them, rather than to torment their cattle, that he administered the poison.
I think the facts bring the offense clearly within the provisions of section 654 of the Penal Code, and that it was properly prosecuted by indictment.
O'BRIEN, J., reads for reversal. All concur with him on the merits, except HAIGHT, J., who reads dissenting opinion, with whom GRAY, J., concurs.
BARTLETT, HAIGHT and VANN, JJ., concur also with MARTIN, J., upon questions discussed by him.
Judgment reversed.