Malicious trespass.

property of one C. D., by then and there unlawfully, maliciously, and mischievously breaking the glass in the windows of said house, to the damage of said C. D., of fifty dollars. Bicknell's Crim. Pr.. 414, 415.

2. Killing an animal.

day of

in the year

That A. B., on the at said county, unlawfully, maliciously, and mischievously injured and killed a certain horse, the property of one C. D., by then and there unlawfully and mischievously shooting said horse, to the damage of said C. D., of one hundred dollars. See 2 Blackf. 371.

Must allege the amount of damage done.-An information for a malicious trespass alleged that the defendant maliciously, etc., killed a dog, of the value of forty dollars, etc. Held, that the information was bad, for not alleging the amount of damage done. 27 Ind. 425. See 2 Blackf. 371; 3 Id. 346; 21 Ind. 206.

An affidavit charging that A. B. " maliciously injured a toll-gate, the property of C. D., of the value of five dollars, by then and there taking the same down off the hinges, to the damage of said turnpike company," etc., is sufficient. 14 Ind. 366.

Ownership.-An indictment for malicious trespass in giving a quantity of arsenic to a number of horses, and thereby causing their death, alleged that the defendant, on, etc., at, etc., administered, etc., to six horses of the personal property of” J. M. Held, that this was a sufficiently certain allegation of the ownership of the property. 32 Ind. 384.

An information for malicious trespass charged that the defendant, on, etc., at, etc., " did maliciously and mischievously injure one wagon, the property of Peter S. Kennedy, of the value of forty dollars, by then and there removing from the ends of the axletrees of said wagon the nuts or taps on the same, and by then and there removing the hammer and neck-yoke of said wagon, where the said Kennedy could never find them-the said taps, hammer, and neck-yoke-which taps, etc., were of the value of seven dollars, and by means of said injuries the wagon was damaged seven dollars; all to the damage of said Kennedy seven dollars." Held, that the information was sufficient. 21 Ind. 206.

Manner of committing the injury-Surplusage-Duplicity.-In an information for maliciously killing horses, an allegation of the manner of the killing is surplusage. Quare, whether duplicity in such an information is ground for quashal under the code. Where

Malicious trespass.

injuries to two animals have been done at the same time and place, but one offense is charged, and there is no duplicity. If the jury, in such case, find the defendant guilty as to one animal, and say nothing as to the other, they acquit as to the latter. 14 Ind. 590.

An affidavit and information alleged that the defendants unlawfully, maliciously, and mischievously did injure and cause to be injured, a sign, the property of, etc., of the value, etc., to the damage, etc. Held, that the phrase, "injured and caused to be injured," is not objectionable. 8 Ind. 499.

But it seems that the offense is not sufficiently described; the specific injury should have been shown. Ibid. See 5 Blackf. 314. Allegation of ownership-Description of injury.-An affidavit and information charged that the defendants unlawfully, maliciously, etc., injured, and caused to be injured, the personal goods and chattels, to-wit, fifty head of cattle, of the value, etc., at, etc., by then and there maliciously, etc., dogging and hunting said cattle, whereby he, A., sustained damage to the amount of, etc. Held, that the affidavit, etc., were bad for not alleging the ownership of the cattle directly. Held, also, that the nature of the injury should have been stated more specifically. 7 Ind. 270. (This case is distinguished in 14 Ind. 366.)

Killing dog.-The malicious killing of a dog is an indictable offense under our statute on the subject of malicious mischief. Ind. 377.

2

Ownership. The property injured must be proved to belong to the person alleged to be the owner 2 Ind. 550.

Public property.-An indictment for malicious trespass charged that the defendant maliciously destroyed, etc., divers windows of the county seminary building, etc., the property of the county of Sullivan, etc. Held, that the indictment was good as in effect charging a malicious injury to public property. Held, also, that the injury charged was stated with sufficient certainty. 1 Ind. 511.

The distinction between the civil action for trespass and the criminal prosecution for malicious trespass should be strictly maintained, and the criminal action should not be sustained as a means of redressing a private grievance, or for the purpose of determining the title to real estate. 52 Ind. 478. See 13 Ind. 375.

Malice-Fence-Evidence.-Malice is an essential element ingredient of the crime of malicious trespass; and where, on the trial of a prosecution for malicious trespass in removing a fence erected by the prosecuting witness, it was proved that the defend

Malicious trespass.

ant, in removing the fence, acted under a claim of ownership of land on which it was erected, through a long line of written title, with a colorable right, and under professional legal advice, and with apparent good faith, there could be no conviction. 52 Ind. 478. See 45 Ind. 388.

Evidence-Toll-gate-Refusal to pay toll.-A turnpike company, entitled by statute to erect a toll-gate and collect toll, may close such gate against a traveler liable to pay toll who attempts to pass without payment, and where such traveler forcibly sawed open the gate, and passed through, he was guilty of malicious trespass. 50 Ind. 281.

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Corporation-Name-Variance.-Ownership of property by a corporation may be proved by the same kind of evidence that would prove ownership in a natural person. Where a party was indicted for malicious trespass in injuring a toll-gate charged to be the property of "The Madison, Smyrna and Graham Gravel Road Company," and the evidence showed that the gate injured belonged to "The Madison, Smyrna and Graham Turnpike or Gravel Road Company," and that there was but one corporation answering to either name, and that had the latter name, the variance was immaterial. 46 Ind. 305.

Evidence-Wabash and Erie Canal.-In a prosecution for a malicious trespass, in cutting the banks of a reservoir of the Wabash and Erie Canal, it was held that evidence tending to show that the canal had wholly ceased to be used as such, in that part of the line, and was in many places filled up and used as a road-way, and that the reservoir caused sickness in the neighborhood where the defendants resided, was properly admitted as tending to rebut the malicious intent. 29 Ind. 110.

Question of title.-A person without color of title could not defeat a criminal prosecution for malicious trespass upon lands by setting up title in himself. 13 Ind. 375.

Title obtained by fraud.-A person is not liable to a criminal prosecution for destroying timber on lands of which he holds possession by virtue of a fraudulent contract of purchase. 10 Ind. 492. See 45 Ind. 388; Whart. Crim. Law, § 2002.

Setting grounds on fire.

SEC. 34. If any person shall, willfully and maliciously, set ou fire, or cause to be set on fire, any grounds within this state, not belonging to such person, or shall intentionally per

Trespass on land.

mit the fire to pass from grounds owned by such person, to the injury of any other person, the person so offending shall be fined not exceeding fifty dollars. 2 R. S. 471.

CHARGE.

day of

in the year

That A. B., on the at said county, unlawfully, willfully, and maliciously, did set on fire, and did cause to be set on fire, certain grounds there situate, not then and there belonging to said A. B., but then and there the property of one C. D., to the injury of said C. D. fifty dollars.

SEC. 10. TRESPASS ON LAND.

SEC. 14. Every person who shall injure any tree or sapling on the land of any other person, or on land belonging to the state, or to any county or township therein, or on any land reserved or granted for the use of schools or seminaries, without a license so to do from competent authority, or who, without such license, shall cut down or remove from any such lands, or from lands belonging to the United States, any tree, stone, timber, or other valuable article, shall be deemed guilty of a trespass, and, upon conviction, shall be fined in five times the value of such property, to which may be added imprisonment not exceeding twelve months in the county jail, in the discretion of the court or jury trying the same; and any person concerned in such trespass may be compelled to testify against any other person therein concerned; and, in case of lands belonging to the United States, it shall be sufficient to prove that such lands are reputed in the neighborhood to be-long to the United States. 2 R. S. 463.

CHARGE.

day of

in the year

at said

That A. B., on the county, unlawfully cut down, on land belonging to one E. H., in said county, one green beech tree, of the value of one dollar, and of the property of said E. H., without having a license so to do from said E. H., or any other competent authority. Bicknell's Crim. Pr. 416.

Trespass on land.

SEC. 15. Nothing contained in the last preceding section (section 14, above cited) shall be construed to make guilty of trespass actual settlers upon public lands, who may cut timber and use stone, for their own farming purposes, upon the land upon which they may reside. 2 R. S. 464.

Riparian owner-Ice.-When the water of a flowing stream, running in its natural channel, is congealed, the ice attached to the soil constitutes a part of the land, and belongs to the owner of the bed of the stream, who has the right to prevent its removal. Where ice, valuable as an article of commerce, was removed without license, by cutting from a pool formed by a dam in a stream not navigable, by a person owning the land opposite the place where the ice was cut, but the portion of the pool from which the ice was removed being over the land of another. Held, that this was a trespass under section 14 of the statute, providing that any person who, without license from competent authority, shall remove from the lands of another any tree, stone, timber, or other valuable article, shall be deemed guilty of a trespass. 33 Ind. 402. See 30 Ind. 287.

Removing gravel from land-Construction of statute.-An indictment for trespass on land charged that the defendant did, on, etc., unlawfully take and remove from the land belonging to C. D., in the county of M., forty-five cubic feet of gravel, of the value of six. dollars. Held, that the indictment was insufficient, for failing to allege that the gravel removed was a part of the realty. The words "remove from," in this section, have not a technical meaning, authorizing, in such a case, the implying of an averment that the thing removed was a part of the realty. (Elliot, C. J., dissenting.) 31 Ind. 72.

Description of land.-An indictment charged that the defendant, "on, etc., at, etc., did unlawfully cut down and remove, on and from land belonging to M. S., in said county, one tree, of the value of fifty cents, the property of M. S., without having a license so to do from said M. S., or any other competent authority." Held, that this was a sufficiently certain description of the land upon which the trespass was committed. 30 Ind. 111.

The following indictment was held good, the point being made against it that it did not appear therefrom whether the ice was taken from a running stream or from a natural or artificial pond: