Respublica v. Teischer, 1 U.S. 335 (1788)
Content
1 U.S. 335
1 Dall. 335
1 L.Ed. 163
Respublica
v.
Teischer
No. ____.
Supreme Court of Pennsylvania
July Term, 1788
1
The Defendant had been convicted in the county of Berks upon an indictment
for maliciously, wilfully, and wickedly killing a Horse; and upon a motion in
arrest of Judgment, it came on to be argued, whether the offence, so laid, was
indictable?
2
Sergeant, in support of the motion, contended that this was an injury of a
private nature, amounting to nothing more than a Trespass; and that to bring the
case within the general rule of indictments for the protection of society, it was
essential that the injury should be stated to have been perpetrated secretly, as
well as maliciously; which, last he said was a word of mere form, and capable
of an indefinite application to every kind of mischief. To show the leading
distinction between Trespasses, for which there is a private remedy, and crimes
for which there is a public prosecution, he cited Hawk. Pl. Cr. 210. lib. 2. c. 22.
s. 4. And he contended that the principle of several cases, in which it was
determined an indictment would not lie, applied to the case before the Court. 2
Stra. 793. 1 Stra. 679.
3
The Attorney General observed, in reply, that though he had not been able to
discover any instance of an indictment at common law, for killing an animal,
or, indeed, for any other species of malicious mischief; yet, that the reason of
this was probably the early interference of the statute law to punish offences of
such enormity; for, that in all the precedents, as well antient as modern, he had
found the charge laid contra forman statuti, except in the case of an information
for killing a dog; upon which, however, he did not mean to rely. 12 Mod. 337.
4
He said, that the law proceeded upon principle, and not merely upon precedent.
In the case of Wade for embezzling the public money, no precedent was
produced; and one Henry Shaillcross was lately condemned in Montgomery
county, for maliciously burning a barn, (not having hay or corn in it) though
there was certainly no statute for punishing an offence of that description in
Pennsylvania. The principle, therefore, is, that every act of a public evil
example, and against good morals, is an offence indictable by the common law;
and this principle affects the killing a horse, as much, at least, as the burning an
empty barn.
5
But, he contended, that there were many private wrongs which were punishable
by public prosecution; and that with respect to these a distinction had been
accurately established in 2 Burr. 1129. where it is said, that 'in such impositions
or deceits where common prudence may guard persons against the suffering
from them, the offence is not indictable, but the party is left to his civil remedy
for the redress of the injury that has been done him; but where false weights and
measures are used, or false tokens produced, or such methods taken to cheat
and deceive, as people cannot by any ordinary care or prudence be guarded
against, there it is an offence indictable.' Accordingly in Crown Cire. Comp.
231. 1 Stra. 595. S. C. Crown Circ. Comp. 24. are cases of private wrongs, and
yet punished by indictment; because, as it is said in Burrow, common prudence
could not have guarded the persons against the injury and inconveniency,
which they respectively sustained. The same reason must have prevailed in an
indictment at Lancaster (the draft of which remains in the precedent book of the
successive Attornies General of this State) for poisoning bread, and giving it to
some chickens; and it applies in full force to the case before the Court.
6
Independent, however, of these authorities and principles, the Jury have found
the killing to be something more than a trespass; and that it was done
maliciously forms the gift of the indictment; which must be proved by the
prosecutor, and might have been controverted and denied by the Defendant.
Being therefore charged, and found by the verdict, it was more than form; it
was matter of substance.
7
The opinion of the Court was delivered on the 15th of July, by the Chief
Justice.
8
M'Kean, Chief Justice.
9
The Defendant was indicted for 'maliciously, wilfully, and wickedly killing a
horse,' and being convicted by the Jury, it has been urged, in arrest of judgment,
that this offence was not of an indictable nature.
10
It is true, that on the examination of the cases we have not found the line
accurately drawn; but, it seems to be agreed, that whatever amounts to a public
wrong may be made the subject of an indictment. The poisoning of chickens;
cheating with salse dice; fraudulently tearing a promissory note, and many
other offences of a similar description, have heretofore been indicted in
Pennsylvania; and 12 Mod. 337. furnishes the case of an indictment for killing
a dog; an animal of far less value than a horse. Breaking windows by throwing
stones at them, though a sufficient number of persons were not engaged to
render it a riot: and the embezzlement of public monies, have, likewise, in this
State been deemed public wrongs, for which the private sufferer was not alone
entitled to redress; and unless, indeed, an indictment would lie, there are some
very heinous offences, which might be perpetrated with absolute impunity;
since the rules of evidence, in a civil suit, exclude the testimony of the party
injured, though the nature of the transaction generally makes it impossible to
produce any other proof.
11
For these reasons, therefore, and for many others which it is unnecessary to
recapitulate, as we entertain no doubt upon the subject, we think, the indictment
will lie.
12
Let judgment be entered for the Commonwealth.
1 Dall. 335
1 L.Ed. 163
Respublica
v.
Teischer
No. ____.
Supreme Court of Pennsylvania
July Term, 1788
1
The Defendant had been convicted in the county of Berks upon an indictment
for maliciously, wilfully, and wickedly killing a Horse; and upon a motion in
arrest of Judgment, it came on to be argued, whether the offence, so laid, was
indictable?
2
Sergeant, in support of the motion, contended that this was an injury of a
private nature, amounting to nothing more than a Trespass; and that to bring the
case within the general rule of indictments for the protection of society, it was
essential that the injury should be stated to have been perpetrated secretly, as
well as maliciously; which, last he said was a word of mere form, and capable
of an indefinite application to every kind of mischief. To show the leading
distinction between Trespasses, for which there is a private remedy, and crimes
for which there is a public prosecution, he cited Hawk. Pl. Cr. 210. lib. 2. c. 22.
s. 4. And he contended that the principle of several cases, in which it was
determined an indictment would not lie, applied to the case before the Court. 2
Stra. 793. 1 Stra. 679.
3
The Attorney General observed, in reply, that though he had not been able to
discover any instance of an indictment at common law, for killing an animal,
or, indeed, for any other species of malicious mischief; yet, that the reason of
this was probably the early interference of the statute law to punish offences of
such enormity; for, that in all the precedents, as well antient as modern, he had
found the charge laid contra forman statuti, except in the case of an information
for killing a dog; upon which, however, he did not mean to rely. 12 Mod. 337.
4
He said, that the law proceeded upon principle, and not merely upon precedent.
In the case of Wade for embezzling the public money, no precedent was
produced; and one Henry Shaillcross was lately condemned in Montgomery
county, for maliciously burning a barn, (not having hay or corn in it) though
there was certainly no statute for punishing an offence of that description in
Pennsylvania. The principle, therefore, is, that every act of a public evil
example, and against good morals, is an offence indictable by the common law;
and this principle affects the killing a horse, as much, at least, as the burning an
empty barn.
5
But, he contended, that there were many private wrongs which were punishable
by public prosecution; and that with respect to these a distinction had been
accurately established in 2 Burr. 1129. where it is said, that 'in such impositions
or deceits where common prudence may guard persons against the suffering
from them, the offence is not indictable, but the party is left to his civil remedy
for the redress of the injury that has been done him; but where false weights and
measures are used, or false tokens produced, or such methods taken to cheat
and deceive, as people cannot by any ordinary care or prudence be guarded
against, there it is an offence indictable.' Accordingly in Crown Cire. Comp.
231. 1 Stra. 595. S. C. Crown Circ. Comp. 24. are cases of private wrongs, and
yet punished by indictment; because, as it is said in Burrow, common prudence
could not have guarded the persons against the injury and inconveniency,
which they respectively sustained. The same reason must have prevailed in an
indictment at Lancaster (the draft of which remains in the precedent book of the
successive Attornies General of this State) for poisoning bread, and giving it to
some chickens; and it applies in full force to the case before the Court.
6
Independent, however, of these authorities and principles, the Jury have found
the killing to be something more than a trespass; and that it was done
maliciously forms the gift of the indictment; which must be proved by the
prosecutor, and might have been controverted and denied by the Defendant.
Being therefore charged, and found by the verdict, it was more than form; it
was matter of substance.
7
The opinion of the Court was delivered on the 15th of July, by the Chief
Justice.
8
M'Kean, Chief Justice.
9
The Defendant was indicted for 'maliciously, wilfully, and wickedly killing a
horse,' and being convicted by the Jury, it has been urged, in arrest of judgment,
that this offence was not of an indictable nature.
10
It is true, that on the examination of the cases we have not found the line
accurately drawn; but, it seems to be agreed, that whatever amounts to a public
wrong may be made the subject of an indictment. The poisoning of chickens;
cheating with salse dice; fraudulently tearing a promissory note, and many
other offences of a similar description, have heretofore been indicted in
Pennsylvania; and 12 Mod. 337. furnishes the case of an indictment for killing
a dog; an animal of far less value than a horse. Breaking windows by throwing
stones at them, though a sufficient number of persons were not engaged to
render it a riot: and the embezzlement of public monies, have, likewise, in this
State been deemed public wrongs, for which the private sufferer was not alone
entitled to redress; and unless, indeed, an indictment would lie, there are some
very heinous offences, which might be perpetrated with absolute impunity;
since the rules of evidence, in a civil suit, exclude the testimony of the party
injured, though the nature of the transaction generally makes it impossible to
produce any other proof.
11
For these reasons, therefore, and for many others which it is unnecessary to
recapitulate, as we entertain no doubt upon the subject, we think, the indictment
will lie.
12
Let judgment be entered for the Commonwealth.
