The Rev. Sts. c. 126, § 39, prescribe a punishment for “ every person who shall wilfully and maliciously kill, maim or disfigure any horses, cattle or other beasts of another person.” The offence thus made punishable was previously described in nearly the same words, by St. 1804, c. 131, § 4, and by the English Sts. 22 & 23 Car. 2, c. 7, and 9 Geo. 1, c. 22. And this indictment alleges that the defendants did wilfully and maliciously kill a horse of another person named. Is this a sufficient averment of the statute offence; or should “ the manner, mode or process ” of killing have been set forth, as is contended by the defendants’ counsel ?
The court are of opinion that the indictment is sufficient. It is in the form that is found in English books which are deemed safe precedents. Crown Circ. Comp. (7th ed.) 218. 2 Stark. Crim. Pl. (2d ed.) 579. 3 Chit. Crim. Law, 1086,1087. Archb. Crim. Pl. (13th ed.) 451, and in the previous editions. In Rex v. Chalkley, Russ. & Ry. 258, this form was not objected to, although other questions in the case were carried before all the judges.
American books of forms contain indictments like this; that Is, setting forth the offence in the words of the statutes on which they are framed, without any description of the manner of killing. And indictments at common law, for the wilful and malicious killing of beasts, have been drawn in the same manner. Both have been sustained. State v. Scott, 2 Dev. & Bat. 35. Taylor v. State, 6 Humph. 285.
Under St. 9 Geo. 1, c. 22, a conviction was held to be right, on an indictment which alleged that the defendant feloniously, maliciously, &e. did maim and wound two asses, the property of a third person; the manner of maiming and wounding not being stated. Rex v. Whitney, 1 Moody, 3. See also Crown Circ. Comp. 219, 220; Rex v. Briggs, 1 Moody, 318; Erle's case, 2 Lewin, 133. Motion in arrest of judgment overruled.