{
  "id": 1507781,
  "name": "State v. Culbreath",
  "name_abbreviation": "State v. Culbreath",
  "decision_date": "1902-12-06",
  "docket_number": "",
  "first_page": "80",
  "last_page": "82",
  "citations": [
    {
      "type": "official",
      "cite": "71 Ark. 80"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
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      "cite": "66 Ark. 65",
      "category": "reporters:state",
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      "reporter": "Ark.",
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    {
      "cite": "36 Ark. 242",
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      "cite": "19 Ark. 613",
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      "reporter": "Ark.",
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  "last_updated": "2023-07-14T19:01:48.196038+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "State v. Culbreath."
    ],
    "opinions": [
      {
        "text": "Bunn, C. J.\nThis is an indictment for malicious mischief, in the Ouachita circuit court, and it reads as follows, to-wit: \u201cThe grand jury of Ouachita county, in the name and by the authority of the state of Arkansas, on oath, accuse Ed. Culbreath of the crime of malicious mischief, committed as follows, to-wit: The said defendant, on the 28th day of October, 1901, in Ouachita county, Arkansas, did unlawfully and wilfully pull down the fence of certain enclosed grounds belonging to one John S. Beard, without the consent of the said John S. Beard, against the peace and dignity of the state of Arkansas.\u201d\nTo this indictment a general demurrer was interposed, and the same was sustained by the court, and the cause was dismissed, whereupon the state excepted, and prayed an appeal to this court.\nThe demurrer being general, we are not'favored with a particular recital of the grounds of objection, but from the argument we are unable to discover the issues of law involved.\nThere does not appear to be any valid objection to the form of the indictment. It concludes \u201cagainst the peace and dignity of the state of Arkansas,\u201d which is the constitutional requirement, and the only formal requirement other than the style of the case, which may be regarded as essential to be observed. Section 49, art. 7, Constitution of 1874.\nThe indictment charges the crime in the language of the statute, and unless the case be exceptional, and this is not, that is sufficient. Sections 2075, 2076, 2087, 2091, Sand & H. Dig.\nThe omission of the words \u201ccontrary to the form of the statute in such case made and provided\u201d does not vitiate the indictment. State v. Cadle, 19 Ark. 613.\nThe act of pulling down or breaking the enclosures of another without his consent is per se a crime, without an allegation of the injury or damage, and it is therefore sufficient to charge that the act was committed unlawfully and wilfully, as in the indictment in this case.\nThe name of the offense in the indictment is doubtless misleading, and this may have misled the learned circuit judge into the error of sustaining the demurrer. The section upon which this indictment is based \u2014 section. 1784, Sand. & H. Dig. \u2014 was the first section of an act approved January 21, 1875, entitled, \u201cAn act to protect enclosures from trespass.\u201d The crime charged would therefore have been more appropriately termed \u201ctrespass\u201d than \u201cmalicious mischief.\u201d The digester has included the section in the chapter headed: \u201cMalicious Mischief and Trespass and Injury to Property.\u201d\nThe name of the crime is controlled by the specific acts charged, and an erroneous name of the charge does not vitiate the indictment. Johnson v. State, 36 Ark. 242.\nThe judgment of the court below is reversed, and the cause remanded, with instructions to overrule the demurrer and proceed not inconsistently herewith.",
        "type": "majority",
        "author": "Bunn, C. J."
      }
    ],
    "attorneys": [
      "J. M. Barker and Geo. W. Murphy, Attorney General, for the State."
    ],
    "corrections": "",
    "head_matter": "State v. Culbreath.\nOpinion delivered December 6, 1902.\n1. Trespass \u2014 Sueeiciency oe Indictment. \u2014 An indictment for trespass which charges the crime in the language of the statute (Sand. & H. Dig., \u00a7 1784) is sufficient. (Page 81.)\n2. Statutory Indictment \u2014 Conclusion.\u2014The omission, in an indictment for a statutory crime, of the words, \u201ccontrary to the form of the statute in such case made and provided,\u201d does not vitiate the indictment. (Page 81.)\n3. Trespass \u2014 Indictment\u2014Allegation oe Damage. \u2014 An indictment for trespass which alleges that defendant did unlawfully and wilfully pull down the fence of another, without alleging injury or damage to the latter, is sufficient. (Page 81.)\n4. Same \u2014 Error in Designation oe Crime.' \u2014 -An indictment which specifically alleges a trespass is not defective because it names the crime \u201cmalicious mischief.\u201d (Page 82.)\nAppeal from Ouachita- Circuit Court.\nCharles W. Smith, Judge.\nReversed.\nJ. M. Barker and Geo. W. Murphy, Attorney General, for the State.\nThe indictment was sufficient. Sand. & H. Dig. \u00a7 1784; 31 Ark. 676. The conclusion \u201ccontra formam staiuti\u201d is not necessary. Sand. & H. Dig. \u00a7\u00a7 2075, 2076, 2087, 2091; 19 Ark. 613; 66 Ark. 65."
  },
  "file_name": "0080-01",
  "first_page_order": 98,
  "last_page_order": 100
}