{ "id": 1905654, "name": "Bennefield v. State", "name_abbreviation": "Bennefield v. State", "decision_date": "1896-05-02", "docket_number": "", "first_page": "365", "last_page": "368", "citations": [ { "type": "official", "cite": "62 Ark. 365" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "30 Ark. 433", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881128 ], "opinion_index": -1, "case_paths": [ "/ark/30/0433-01" ] }, { "cite": "3 Tex. App. 228", "category": "reporters:state", "reporter": "White & W.", "opinion_index": -1 }, { "cite": "2 S. W. 591", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "22 N. E. 88", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "48 Ark. 57", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "30 Ark. 435", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881156 ], "opinion_index": -1, "case_paths": [ "/ark/30/0435-01" ] }, { "cite": "19 Ill. 80", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 441710 ], "opinion_index": 0, "case_paths": [ "/ill/19/0080-01" ] } ], "analysis": { "cardinality": 359, "char_count": 5699, "ocr_confidence": 0.571, "pagerank": { "raw": 2.606977198950755e-07, "percentile": 0.820025607670563 }, "sha256": "4e07ac4497e68714e3affbf790cb70e88f33b0443ad024791d933bde73967526", "simhash": "1:00a1cdb193d72304", "word_count": 1004 }, "last_updated": "2023-07-14T21:18:56.618650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bennefield v. State." ], "opinions": [ { "text": "Hughes, J.\n(after stating the facts). The law, as found in Sandels & Hill\u2019s Digest in the sections read to the jury by the court, seems to us to be too plain to require comment or construction. Eor a case in point, we refer to the case of Snap v. People, 19 Ill. 80. Under our statute, it is malicious mischief to kill or wound any animal of another, the stealing of which is larceny, with or without malice toward the owner of the animal, if the killing or wounding of the animal is done unlawfully, maliciously, or wantonly.\nAstodefenses to mfscweff\nwhen error not prejudiciai.\nwitness may restate testimony.\nIt is no defense that the animal, when killed, was trespassing upon the grounds of the defendant, unless he show that, at the time, his grounds were enclosed by a lawful fence. Nor is it any defense that the animal was breachy, and had previously trespassed upon defendant\u2019s grounds, though this might go, and is admissible, in mitigation, as the circumstances attending the offense might materially affect the punishment, which the statute fixes at not less than twenty nor more than one hundred dollars.\nIn this case, however, there was no prejudicial a j error in excluding this evidence, as the lowest fine was imposed.\nThere was no error in permitting the witnesses to , restate their testimony to the jury m the presence and by direction of the court, after the cause had been submitted to the jury, and they had retired to consider of their verdict.\nWe find no substantial error. The judgment is affirmed.", "type": "majority", "author": "Hughes, J." } ], "attorneys": [ "P. W. McFarlane and T. B. Pryor for appellant.", "E. B. Kinsworthy, Attorney General, and Brewster & Brown, for appellee." ], "corrections": "", "head_matter": "Bennefield v. State.\nOpinion delivered May 2, 1896.\nMalicious Mischief \u2014 Defense.\u2014It is no defense to the charge of malicious mischief in shooting and wounding a mule that the animal was trespassing and was breachy, unless he was at the time on ground inclosed by a lawful fence, although the circumstances \u2022might mitigate the punishment.\nAppeal \u2014 Harmless Error. \u2014 The error of excluding mitigating evidence in a misdemeanor case is not prejudicial where the lowest possible fine was imposed.\nTrial \u2014 Restating Evidence to Jury. \u2014 Witnesses may be allowed to restate their testimony, on request of the jury, in the presence of the court after the cause has been submitted and the jury have retired.\nAppeal from Sebastian Circuit Court, Greenwood District.\nEdgar E. Bryant, Judge.\nSTATEMENT BY THE COURT.\nTkis is an appeal from a judgment of conviction of malicious mischief, committed by shooting and wounding a mule trespassing in the enclosed grounds of the appellant. The proof tended to show that the fence around the enclosure where the mule was shot was not a lawful fence, \u2014 -that is, that it was not five feet high, \u2014 when the offense was committed. The appellant offered to show on the trial that he shot the mule to protect his crop, and without malice toward the owner or the mule, which the court refused, to which he excepted. The court also refused to permit the appellant to prove that the mule was breachy, and that he had been in appellant\u2019s field a number of times, and that on one occasion appellant had taken the mule from his field, and had notified the owner, and offered to furnish a yoke for the mule. The appellant excepted.\nThe court instructed the jury by reading secs. 1766, 3764, and 3766, Sandels & Hill\u2019s Digest, and the following instructions, among others: \u201c(2) Now, if a person wantonly, maliciously, or wilfully wounds any animal trespassing on his grounds, he is guilty, unless he shows that his fence was a lawful fence. (3) A fence, to be a lawful fence, must be five feet high all around the enclosure at the time of the trespass, for the statute says that to justify the offense the \u2018grounds must be enclosed in a lawful fence.\u2019 \u201d\nAfter the case was submitted to the jury, the jury came into court, and desired two of the witnesses be required to restate their testimony on a certain matter, which was permitted by the court, over objection of appellant, and to which he excepted.\nP. W. McFarlane and T. B. Pryor for appellant.\n1. The act in the case of malicious mischief must proceed from malice, and, according to the general doctrine, it must be against the owner of the animal. 30 Ark. 435. Since the above decision, the legislature has relieved the state from the burden of proving malice toward the owner of the animal, but did not change the law so that an act committed without any malice of any kind would be malicious mischief. Sand. & H. Dig., sec. 3769; Bish. St. Cr., sec. 437; 2 Bouvier, L. Die. (14 Ed.), p. 92; 48 Ark. 57.'\n2. Appellant should have been allowed to introduce testimony to show his good or bad faith, and to show the breachy character of the animal. The words \u201cwilfully, maliciously\u201d in the statute were intended to express the gist of the crime. 14 Am. & Eng. Enc. Law, p. .15. Any evidence to show want of malice was admissible. Ib. p. 15; 22 N. E. 88; 2 S. W. 591; ib. 767.\nE. B. Kinsworthy, Attorney General, and Brewster & Brown, for appellee.\n1. The law requires a lawful fence before the right to kill or wound trespassing stock is granted. If the fence is lawful, the owner of the stock is liable for damages. Sand. & H. Dig., secs. 3769, 3770.\n2\u2022 Under our statute, malice toward the owner is not necessary. Sand. & H. Dig., sec. 1766; 19 111. 80; 60 Am. Dec., p. 582; 3 Tex. App. 228. The law has been changed in this respect. Mansf. Dig., sec. 1654; 30 Ark. 433; 48 id. 57. As to the meaning of the words \u201cmalicious mischief,\u201d \u201cwilfully, maliciously, and wantonly,\u201d see Whart. Cr. Law, sec. 1067, 8 Ed.; Anderson, Diet., p. 1099, 649; Webster, Diet. s. v. The only defense now is a lawful fence.\n3. It was in the sound discretion of the court to permit witnesses to restate their testimony." }, "file_name": "0365-01", "first_page_order": 381, "last_page_order": 384 }