This indictment is not founded on the statute, Bat. Rev. chap. 32, secs. 94, 95, but is at common law; and the question is, is it an indictable offence at common law, to wound cattle maliciously.
It has been held in this State, indictable to set fire to and burn tar in barrels, to kill a steer, and to kill a dog with malice towards the owner, State v. Simpson, 2 Hawks, 460; State v. Scott, 2 Dev. and Bat. 35;State v. Latham, 13 Ired. 33; and to burn plows and harness, State v.Jackson, 12 Ired. 329. But in all these cases the property was killed or destroyed; and no case is to be found in our reports, of an indictment at common law, when the offense was the wounding of cattle, or the mere injury to the property, short of its destruction.
If we look to England, the source of the common law, we are unable to find a case where, independent of stature, it has been held to be a public offence, to maim cattle, whether with or without malice towards the owner. Both the elementary writers and the decisions hold that such offense is not indictable, but is a civil trespass only. 4 Bl. Com. 244; 2 East Pl. *Page 203 Cr. chap. 21, sec. 16; 2 Russ. on Cr. 497; Regina v. Wallace, Cr. and D. Cr. Cases, 403; and no precedent of such a form of indictment, at common law, or independent of statute, is to be found. Arch. Cr. Pl. 182; 3 Chilt, Cr. L. 1087.
In the American Courts, the decision upon this subject, have not been uniform; and in several of the States malicious mischief, as a common law offense, has received a much more extended interpretation than has been attached to it in England. People v. Smith, Cowen, 258; State v. Teischer, 1 Dalb. 335; 19 Wend. 419. But even in this these cases, the corpus of the property was destroyed; and it will be difficult to find a case where injuries short of destruction, have been held to be indictable at common law, and certainly the weight of authority in both countries, is decidedly the other way. State v. Bukman, 3 Dutcher, 124, and authorities therein cited.
This Court will not be warranted in expounding the common law so as to make offenses indictable, which were not clearly indictable before. That is a matter for the consideration of another department of the Government. We have, by statute, made it an indictable offense, unlawfully and on purpose, to kill or maim live stock, under the circumstances described in the statute before cited, but not under all circumstances. Whether the interests of justice and sound morality, do not require the punishment, as a public offense, of all wanton cruelty to live stock, is a question which is attracting much public attention and discussion both at home and abroad, and deservedly so. The remedy for the evil is with the Legislature. It is our province to declare the law to be that this indictment will not lie at common law, and that therefore judgment must be arrested.
There is error.
PER CURIAM. Judgment reversed. *Page 204