State v. Clark

Whelpley, J.

The section of the act upon which ihis indictment was found provides that if any person or persons shall willfully open, break down, injure, or destroy any fences, rails, or enclosures belonging to or in the possession of any oilier person or persons, or cut down, injure, or destroy the wood, timber, trees, herbage, grass, or hay standing or growing upon the lands of any other person or persons, or shall dig up, pull up, injure, destroy, or carry off the vegelabhs standing, growing, or being in or upon the lands of any other person or persons, he shall be deemed guilty of a misdemeanor, and shall, on conviction, be punished by imprisonment in the county jail, not less than two mouths, nor more than six, or by fine, not exceeding three hundred dollars, or both, at the discretion of the court in which such offence shall be tried.

The 70th section of the act to which this is a supplement, makes it an indictable offence willfully, unlawfully, and maliciously to set fire to, or burn or destroy, any fences, piles of wood, boards, or other lumber.

From the different phraseology employed in the two sections, it is evident the legislature intended, by the act of 1855-, to render punishable by indictment mischief and injuries to property of the kind described in both sections which were not reached by the 70th section. Under that the crime was not complete, unless the act was malicious as well as willful and unlawful. To destroy a fence by breaking it down, if for the purpose of honestly asserting a right to the loans in quo, and not out of wantonness or malice, was not within the statute.

The act of 1855, in terms, makes the willful opening, breaking down, or injuring of any fences belonging to or in the possession of any other person a misdemeanor. In what sense is the term willful used? In common parlance, willful is used in the sense of intentional, as distinguished from accidental or involuntary. Whatever one does .intentionally he does willfully. Is it used in that sense in this act? Did the legislature intend to make *99 the intentional opening of a fence for the purpose of going upon the land of another indictable, if done by permission or for a lawful purpose, or the intentional cutting down of any timber upon land in the possession of another, by his permission, or the intentional pulling up of any vegetable growing on the land of another, by his permission, or the intentional carrying off of the vegetables being on the land of another, by his permission, or the entry of an officer to execute a writ of possession, a misdemeanor? We cannot suppose such to have been the actual intent. To adopt such a construction would put a stop to the ordinary business of life. The language of the act, if construed literally, evidently leads to an absurd result.

If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity. The court must restrain the words. The object designed to be leached by the act must limit and control the literal import of the terms and phrases employed. 1 Kent's Com. 462; Commonwealth v. Kimball, 24 Pick 370; United States v. Fisher, 2 Cranch 400 ; 1 Bl. Com. 60.

What was the mischief designed to be remedied ? Why was the act passed ? How stood the common law and statutes when the act was passed ? We have seen that, by a literal construction of this act, it includes not only trespasses, but acts not amounting oven to trespasses — acts done by authority of law — -by the license of the owner — acts for refusing to do which an action would lie against one refusing.

At common law, a mere trespass upon the property of another was not indictable; some other ingredient in the act done, or in the intention with which it was done, was necessary. Blackstone defines a malicious mischief for which an indictment will lie as an act done or injury to the property of another, done not animo furandi, or with intent to gain by another’s loss, but either out of a spirit of wanton cruelty or black and diabolical revenge. 4 Black. 243 .

*100 Statutes like that of 1855 have been passed by other states.

The Revised Statutes .of Massachusetts, eh. 124, §§ 44 and 45, make certain willful . trespasses, such as cutting down or destroying any timber?: or wood standing or growing on the land of another, entering a garden without permission of the owner, with intent to cut, take, carry.away, destroy, or injure the trees, grain, grass, &c., growing thereon, crimes.

Prior to. the passage of the act of 1855, the fences of land-owners, and other things standing or. growing on the lands in their possession, might be willfully destroyed by trespassers , without right, and the ■ land-owner had no remedy except by an action of trespass, which was entirely ineffectual. Hunters, tourists, excursion parties, and id omne genus might roam, over his lands, tear down his fences, destroy his wood and timber, throw open his enclosures .to the public highway, and he was without power to stop the trespasses or adequately punish the offend,ers. An indictment for malicious mischief would not lie, because the acts were not done .maliciously, but in pursuit of game and pleasure; and the offenders were generally transient persons, -without means or responsibility. To put a stop to this evil, and adequately to protect the owner in the enjoyment of bis possessions, the statute in question was passed. Its design' was to punish willful .trespasses of the kind enumerated in it. It never could have been the legislative design to punish an act not amounting to a trespass as a crime.

.The words, in the possession of another, were introduced . for the purpose of making possession, or declaring it, out of .abundant caution, sufficient evidence of title against a wrongdoer, one who could not show a better title, and not for the purpose of making possession conclusive evidence of title against the true owner exercising acts of ownership over his own land.

No one but a trespasser can be amenable to the pro *101 visions of the act. Any other construction of the act involves us in inextricable confusion and absurdity.

If this be the sound construction, then any evidence that would constitute a lawful defence in an action of trespass would be competent upon the trial of the indictment. The evidence offered by the defendant was of that character, and should have been received.