
    The Commonwealth v. Israel.
    December, 1833.
    Criminal Law — Wilful Trespasses — Statute—Construction. — Qumre, whether the taking of any property other than such as is ejusdem generis with that specially mentioned in the statute of 1822-3. ch. 34, § 1. for punishing wilful trespasses, be within the meaning of the statute?
    Same — Same— Indictment — Allegations.-- — An indictment on that statute, must allege that the property taken away by the defendant, belonged to another person; and that the taking was “knowingly and wilfully without lawful authority,” in the terms of the statute.
    Same- Forcible Taking— Indictment — Sufficiency.—Indictment at common law. for taking a horse, “unlawfully and injuriously,” the usualform with force and arms being also used: Held, this does not describe the act as one that constitutes a breach of the peace.
    Same — Rescuing Property from Sheriff’s Bailee -In* dictment —Allegation —Scienter.- Indictment at common law. charging defendant with rescuing property that had been distrained by a sheriff for public dues, from bailee to whose safe keeping the sheriff had committed it. without charging that the defendant knew in what right the bailee held it: Held, indictment defective for not averring that the defendant had snc.h knowledge.
    Same — Same—Same—Same--Jeofaiis.—And this defect is not cured by verdict, by the statute of jeo-fails in criminal cases, 1 Rev. Code, ch. 169, j 44.
    ■ ‘ Case adjourned from the circuit superiour court of Harrison. Israel was indicted in that court, at May term 1833, for a mis-demeanour. There were three counts in the indictment. 1. The first charged that, Israel being indebted *for public dues (tax, county levy and poor rate) to the amount of eighty-one cents, and the same being in the hands of K. Marsh deputy of S. Hall sheriff of Harrison, for collection, he distrained a horse, the property of Israel, for the amount so due from him, and took the horse and put it into the possession of J. Flowers for safe keeping; and that Israel, with force and arms, against the will of Elowers, unlawfully and injuriously, rescued the property, the said tax, county levy and poor rate, remaining still due and unpaid, to the damage of Elowers and Marsh, to the evil example &c. and against the peace and dignity of the commonwealth. 2. The second count charged, that Israel, with force and arms, knowingly and wilfully and without lawful authority, did take and drive away, one horse “then and there being in the possession of J. Flowers,’’ against the will and consent of Flowers, contrary to the form of the statute in such case made and provided, and against the peace and dignity &c. 3. The third count was like the second in all respects, except that it charged, that the horse taken and driven away by Israel, was at the time “in the possession of B. Marsh, deputy of S. Hall, sheriff of Harrison.” The defendant pleaded not guilty. The jury found him guilty, and assessed a fine of ten dollars upon him. Whereupon, he made a motion in arrest of judgment, because neither count of the indictment alleged any indictable offence. -And the court, with the defendant’s consent, adjourned to this court, the questions arising on the reasons assigned in arrest of judgment, and the question, what judgment should be given on the verdict, if any one count were good, and the others defective?
    *W. A. Harrison, for the defendant.
    The attorney general, for the commonwealth.
    
      
      Criminal Law — Trespass—Construction of Statute.— The statute of Feb. 14, 1823. has been uniformly construed to be a statute against wilful trespass. State v. Porter, 25 W. Va. 689, 690, citing principal case, Campbell’s Case, 2 Rob. 791, and Dye’s Case, 7 Gratt. 662.
    
    
      
      Same — Information — Necessary Allegations. — See principal case cited in foot-note to Hord v. Com., 4 Leigh 674; Com. v. Guigon, 1 Va. Dec. 599.
    
    
      
      Same — Impeding Officer in Discharge of Duty — Allegation — Scienter.—The principal case was cited with approval in Pettibone v. U. S., 148 U. S. 197, 13 Sup. Ct. Rep. 546.
    
    
      
       Same — Statute of .Jeofails. — See principal case cited in Old v. Com., 18 Gratt. 930; State v. Cain, 8 W. Va. 736.
    
    
      
      The statute of 1822-3, ch. 34, Supp. to Rev. Code ch. 226, § 1, p. 280, by which It is enacted, “that any person, who shall knowingly and wilfully, without lawful authority, cut down any tree growing on the land of another, or destroy or injure any such tree, or any building; fence or other improvement, or the soil or growing crop on the land of another,- or shall knowingly and wilfully, without lawful authority, but not feloniously, take and carry away, or destroy or Injure, any tree already cut, or any other timber, or property, real or personal, belonging to another,” — “shall be deemed guilty of a mis-demeanour, and may be prosecuted and punished as in other cases of misdemeanour at common law.” —Note in Original Edition.
    
   PKy, J.

Waiving the question, whether by the statute of 1822-3, ch. 34, g 1, the legislature designed to punish by indictment as for a misdemeanour, the wilful taking and carrying away personal poperty of any kind whatever, or only property ejusdem generis with that specially there enumerated, this court is of opinion, that the second and third counts of the indictment, which are founded on that statute, are fatally defective, in not averring that the property taken by the defendant belonged to Flowers and to Marsh, respectively. Non constat but that it belonged to the defendant himself. The offence mentioned in the statute, consists in unlawfully taking away the property of another; and it ought to appear by the indictment, that it is the property of another; for every indictment ought to shew, with certainty, that the accused is guilty of the offence punished by the law.

Upon the first count, there is more difficulty. But the court is of opinion, that the taking of the horse there charged, is not so described as to constitute a breach of the peace. It is charged, that the taking was “unlawful and injurious;” and though the usual phrase “with force and arms” is previously inserted, these words alone do not imply such a force as will sustain an indictment. If connected with the description of an ordinary trespass only, they do not shew such a violence as is indictable. Rex v. Storr, 3 Burr. 1698; Rex v. Bake & al. Id. 1731. Rescue seems applicable only to the forcible delivery of a person from arrest or imprisonment, or to the recaption of goods distrained for rent or damage fea-sant. 6 Bac. Abr. Rescue, A. p. 87. But, without deciding, whether if the property had been taken from the sheriff himself, in the manner stated in this count, it would have been an indictable offence, it seems to the court, that to make it such when the taking is from his private bailee, the defendant should know in what right the "bailee held the possession.The property was his own: if found in the possession of the sheriff, the defendant might be held to know his office, and to be informed of the authority for his acts; and if he took the property from him, he would do it with knowledge and at his peril; but not so in the case of the private bailee. The taking from the private bailee, without knowledge that the property had been distrained by the sheriff, and committed by him to the keeping of the bailee, would be no offence; the defendant could not be presumed or held to know, by what authority he possessed it. 6 Bac. Abr. Rescue, C. p. 89. Now here, it is not averred, that the defendant knew that the property had been distrained by the sheriff, and left by him with Flowers. For aught that appears, he might have been wholly ignorant of it. And the court thinks, that the omission is not cured by the statute of jeofails, 1 Rev. Code, ch. 169, § 44, p. 611. For the indictment might have been found true, without any proof of such knowledge in the defendant as was a necessary ingredient to constitute a misdemean-our ; and, as it is not necessary to prove what is not averred, we are not to presume that such proof was adduced at the trial. This first count though, at common law, might, indeed, be sustained, if the offence were so described in it, as to bring the case within the influence of the statute of 1822-3, ch. 34, § 1, on which the other two counts are founded. But, without deciding whether the statute would apply to the taking of such property in the manner alleged, it is sufficient to say, that the offence is not charged in this first count, substantially, in the terms of the statute: it is not there charged, that the taking was “knowingly and wilfully, without lawful authority.”

BSTILL, J..

dissented from the opinion of the court in regard to the first count.

The judgment entered was: “This Court-is of opinion, that the reasons assigned are sufficient to arrest the judgment.”  