
    Commonwealth vs. James McClellan.
    An averment in an indictment on the Gen. Sts. c. 165, § 41, that the defendant “ did cruelly beat a certain horse ” is a sufficient description of the offence and of the horse.
   Chapman, C. J.

The brevity of the indictment has raised a question as to its sufficiency. It alleges that the defendant, a+ the time and place named, “ did cruelly beat a certain horse, against the peace of the Commonwealth and contrary to the form of the statute,” &c. The statute referred to is § 41 of the Gen. Sts. c. 165. It provides that “ whoever cruelly beats or tortures any horse, ox or other animal, whether belonging to himself or another, shall be punished,” &c. It is suggested that the word “beat” does not of itself describe with sufficient certainty the alleged act, because it may refer to a race or some other act of contest.

N. St. J. Green, for the defendant,

C. Allen, Attorney General, (J. C. Davis, Assistant Attorney General, with him,) for the Commonwealth.

But there can be no doubt that the beating of a horse by a man refers to the infliction of blows. There is no danger that the defendant, or the witnesses, or the jury, or the court will misunderstand it.

It is further said that the word “ cruelly ” describes merely the effect of the beating, and not the intent or disposition with which it is done; and therefore that the beating might be cruel if it inflicted great pain on the animal, though it was not wilful or malicious, but accidental. But the word clearly includes both the wilfulness and cruel temper of mind with which the act was done, and the pain inflicted by the act. If the act were merely accidental, or did not give pain, it would not be cruel, in the ordinary sense of the word as applied to such an act.

It is unnecessary to allege that the horse was the property of any person, for the statute has made that matter immaterial. Nor is it necessary to describe the horse particularly, for the sake of distinguishing it from other horses, in order to protect the defendant from a second prosecution for the same offence. If he is again prosecuted for the offence, he may plead this conviction, and establish the identity of the cases by evidence, the burden being on him. Commonwealth v. Daley, 4 Gray, 209.

Exceptions overruled.  