CHAPTER XV.

MALICIOUS INJURIES TO RAILROAD BRIDGES, HIGHWAYS, BRIDGES, AND TELEGRAPHS.

§ 587. Injuries to railroads and railroad bridges.

§ 588. Injuries to highways, private ways, and bridges.

Injuries to toll-houses and gates.

§ 589.

§ 590.

Injuries to milestones and guide-boards.

§ 591. Injuring telegraph lines.

§ 592. Taking water from or obstructing canals.

587. Every person who maliciously, either—

1. Removes, displaces, injures, or destroys any part of any railroad, whether for steam or horse cars, or any track of any railroad, or any branch or branch-way, switch, turnout, bridge, viaduct, culvert, embankment, station-house, or other structure or fixture, or any part thereof, attached to or connected with any railroad; or,

2. Places any obstruction upon the rails or track of any railroad, or of any switch, branch, branch-way, or turnout connected with any railroad;

-is punishable by imprisonment in the State prison not exceeding five years, or in the county jail not less than six months.

Injuries to railroads.-Willfully placing an obstruction on a railroad track is within this section-59 Ala. 98; and the obstruction must be such as to endanger life-7 Tex. Ct. App. 462; and that the defendant was impelled by other motives than to injure the train, is no defense2 Moody & R. 339; nor is it a defense, if the intent to endanger the safety of passengers is proved, that the train was a freight train-1 Fost. & F. 37; but see 6 Cox C. C. 202. Willfully throwing anything upon a train, so as to endanger the safety of passengers, is an indictable offense-10 Jur. 211; but if the intent was only to commit an assault on a person on the train, the case is not sustained-1 Fost. & F. 107. Obstructions or injuries, as changing the signals so as to slow the train— Law R. 1 C. C. 253; or stretching out the arms as a signal-id. 278; or maliciously placing stones on the track, with intent to injure any car, is indictable-5 Cox C. C. 298.

588. Every person who maliciously digs up, removes, displaces, breaks, or otherwise injures or destroys any

public highway or bridge, or any private way laid out by authority of law, or bridge upon such highway or private way, is punishable by imprisonment in the State prison not exceeding five years, or in the county jail not exceeding one year.

589. Every person who maliciously injures or destroys any toll-house or turnpike gate, is guilty of a misde

meanor.

590. Every person who maliciously removes or injures any mile-board, post, or stone, or guide-post, or any inscription on such, erected upon any highway, is guilty of misdemeanor.

591. Every person who maliciously takes down, removes, injures, or obstructs any line of telegraph, or any part thereof, or appurtenance or apparatus connected therewith, or severs any wire thereof, is guilty of a misdemeanor.

592. Every person who shall without authority of the owner or managing agent, and with intent to defraud, take water from any canal, ditch, flume, or reservoir, used for the purpose of holding or conveying water for manufacturing, agricultural, mining, or domestic uses, or who shall, without like authority, raise, lower, or otherwise disturb any gate or other appurtenance thereof used for the control or measurement of water, or who shall empty or place, or cause to be emptied or placed into any such canal, ditch, flume, or reservoir, any rubbish, filth, or obstruction to the free flow of the water, is guilty of a misdemeanor. [Approved April 1st, 1878.]

TITLE XIV.

Malicious Mischief.

§ 594. Malicious mischief in general, defined.

§ 595. Specifications in following sections not restrictive of last sec.

§ 600.

Burning buildings, etc., not the subject of arson.

§ 601.

§ 602.

Using gunpowder, etc., in destroying or injuring any buildings.
Malicious injuries to freehold.

$ 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. 553. The essence of the offense is injury to prop erty-5 Parker Cr. R. 185; 26 Ohio St. 265; whether the possession to 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. 558; 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 it would be mere trespass-43 Ala. 330; 44 id. 380; 72 N. C. 201; 3 Dutch. 124; 49 Miss. 331; 51 id. 353; but see 37 Ála. 457; 28 Ga. 190. There must 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; 49 Miss. 331; 64 N. C. 23; 79 id. 656; 41 Tex. 622; 3 Yerg. 278; 3 Heisk. 457; but see 1 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 committing 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 ball. 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. 264; 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. 680, whether inflicted by the owner or another-7 Allen, 579; 2 Cranch C. C. 259; 4 id. 433; 44 N. H. 392; 23 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. C. 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.