#### Dye v. The Commonwealth.

June Term, 1851.

I. flalicious Trespass—Indictment—Omission of “But Not Feloniously.”-*—In an indictment for a malicious trespass, it is not error to omit the words “butnot feloniously,” these words not constituting any part of the description or definition of the offence.

*3352. Discharge of Jury—Failure of Record to Show Objection Presumption in Appellate Court.*—If it does not appear on the record that the defendant objected, it will be presumed in the appellate Court, that the Court below discharged the jury empaneled and sworn in the case for sufficient cause, and with the consent or acquiescence of the defendant.

3. flisdemeanors—Discharge of Jury against Consent of Defendant †—In cases of misdemeanor the Court has authority to discharge the jury without or against the consent of the defendant.

4. Malicious Trespass—Statute—Application.—The act of February 14th, 1823, Supp. Rev. Code., ch. 226, § 1, p. 280, to punish malicious trespasses, was intended to apply to acts of trespass upon the property of another, without colour of title, or claim of right *bona fide,*and not feigned for the occasion; and not to cases where there is a *bona fide*claim of right to the property.

*John P. Dye was indicted in the Circuit court of Harrison county, at its June term for 1847, for that he “did then and there knowingly and wilfully without lawful authority, take and carry away two hogs of the value of five dollars, then and there belonging to Benjamin Stout,” &c.

The defendant appeared and moved the Court to quash the indictment, for errors apparent on its face; the error being the omission of the words “but not feloniously ; but the Court overruled the motion. The defendant thereupon pleaded not guilty.

The case came on for trial in October 1848, when the jury declaring they could not agree, they were discharged by the Court.

The cause came on again to be tried in November 1849, when the jury found the defendant guilty, and assessed his amercement to one cent; whereupon he applied to the Court for a new trial, which was refused, and there was judgment according to the verdict. And the defendant excepted and spread the facts on the record as follows: Some time in September 1846, one Hardesty purchased up a small lot of hogs in the county of Harrison, and had them driven to the county of Marion. In driving them, two of the hogs strayed from the drove and found their way to the house of Stout, in he county of Harrison, and ran at large with his hogs. The defendant and one Piles were employed as hands to aid in driving the lot of hogs from Harrison to Marion. The defendant left Marion for his house a few days before Piles left; and when he was about to return home he had a conversation with Hardesty, in the presence of Piles, about the stray hogs, in which Hardesty gave the defendant the right either to take the hogs if they could be found, and account to Hardesty for the .original cost; or to take and sell them for Hardesty, and after paying himself for his trouble, to *account to Hardesty for the balance. But at that time the defendant did not make his election as to which he would do. Soon after his return home the defendant saw the prosecutor Stout, and enquired of him if two of Hardesty’s hogs, which had strayed from the drove, were not at his place; and Stout informed him there were two of them running with his hogs. The defendant then told him that Hardesty wished the defendant to take care of the hogs. On the same evening Piles, in returning home from Marion county, called at the house of Stout, and enquired about the hogs, and informed Stout of what had taken place between the defendant and Hardesty about the hogs; and requested Stout to take care of the hogs for Hardesty if Dye had not taken them, and told him that Hardesty would pay him for keeping them.

It was proved that Hardesty requested Piles to have the hogs taken care of and provided for, if Dye had not done it. Prior to the request to Stout by Piles, the hogs had been running at large with Stout’s hogs, but upon the same evening that the request was made they were put up in a pen by Stout and fed. On the next morning the defendant went to Stout’s house where the hogs were, and told him that they were the defendant’s under an arrangement with Hardesty, and demanded them; but Stout refused to let him have them without a written order from Hardesty; but set up no claim then for the keeping of the hogs. The defendant then told him that if he kept the hogs it would be at his own expense.

It was also proved that on the same evening that Piles had the conversation with Stout as aforesaid, he met with the defendant some two or three miles from Stout’s house, and told him that the hogs were at Stout’s, and of Hardesty’s request; and the defendant swore that he would have the hogs if he had to go to Marion and buy them of Hardesty. Some weeks after *the hogs were put in the pen by Stout, and before they were taken away by the defendant, Hardesty sent word to Stout by one Woodfield to take care of the hogs, and he would pay him for so doing, and not to give them up to the defendant.

About four weeks after the hogs were put in the pen, the defendant went to Marion county and paid Hardesty 4 dollars 50 cents for the two hogs; and obtained from him a written order upon Stout directing him to let the defendant have the hogs; and saying he let the defendant have them at the time he lost them.

, ¡ l Stout kept the hogs in the pen nine *•*weeks, and fed them during that time six- ¡ teen bushels of corn; which was worth in the neighbourhood from twenty-five to i thirty-seven and a half cents a bushel. At *336the end of the nine weeks the defendant, with another person, went after them, and presented to Stout the paper executed by', Hardesty, and demanded the hogs as his own. Stout said that neither Hardesty or the defendant had proved the hogs. That he would give the defendant in money what he had given Hardesty for them, or weigh him pork in the gross to the amount called for in the paper, (which was 260 lbs.,) or he would give them up on being paid for the keeping of them; but he did not then state his charge for keeping. Upon the refusal of Stout to give up the hogs, the defendant told him he would pay nothing for the keeping; and in the presence of Stout pulled down the fence, and turned the hogs out; and then put up the fence again, and drove the hogs away, without paying or offering to pay Stout anything for keeping the hogs; the prosecutor telling him that if he took them away without paying for keeping them, he would indict him. The hogs were thus driven away in the county of Harrison, about five months before the finding the indictment against the defendant. And it was proved that Hardesty and the defendant were each responsible; and "'able to pay any charge that Stout was entitled to for keeping the hogs.

Upon the application of the defendant this Court awarded a writ of error to the judgment.

Cabell, for the defendant.

*

naIicious Trespass—Indictment.—See monographic *note*on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.

*

Discharge of Jury—Failure of Record to Show Objection-Presumption in Appellate Court.—For the proposition set forth in the second headnote. the principal case was cited in Dove v. Com., 82 Va. 306. See monographic *note*on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.

†

Same—-Power of Court.—See principal case cited in Wright v. Com., 75 Va. 916; Jones v. Com., 86 Va. 742, , 10 S. B. Rep. 1004. For further information on this ¡ subject, see monographic *note*on “Juries” appended to Chahoon v. Com., 20 Gratt. 733. l ¡ i

THOMPSON, J.,

delivered the opinion of the Court.

The motion to quash the indictment because of the omission of the words of the statute “but not feloniously” was properly overruled. They form no element or ingredient of, and constitute no part of the description or definition of the offence. Nor are they to be likened to the exceptions and provisos sometimes found in the body of a statute, which, according to the precedents, must be inserted in, or negatived by, the indictment. Whether inserted or omitted, the offence charged and the evidence to support it are the same, to wit, a trespass amounting to a misdemeanor, and not a felony. It is the opinion of the Court that the words were not employed by the statute as descriptive of the offence, but inserted out of abundant caution to exclude the possible conclusion or inference that the Legislature intended thereby to confound malicious trespasses with felonies; or to make them concurrent prosecutions of kindred offences, whereby a conviction of the trespass or lesser offence would be pleadable in bar of the felony, or higher offence. Judge Field concurs with us upon this point; he thinks the Court in Howard’s Case, 11 Leigh 632, has so decided the question.

Upon the 2d error assigned, the Court is •of opinion that it must be presumed from what appears on the record that the Court below discharged the first jury that was empaneled and sworn for sufficient cause, to wit, inability to agree in a verdict; and in the absence of any bill of exceptions or objection entered on the record, if not with the express consent, with the acquiescence fof the defendant. But had the defendant objected, there would have been no error, not only because the power of the Court to discharge the jury in a case of misdemeanor, without and against the consent of the defendant, has been too long and too well settled in Virginia, in England, and some, if not all, the States of the Union, to be now questioned ; but because the act of 14th March 1848, Sess. Acts 1847-8, pa. ISO, which was in force and applicable quoad hoc, when the first trial occurred, expressly gives the power to the Court in all criminal cases.

Upon the 3d and last error assigned we are of opinion that the Circuit court erred in overruling the motion for a new trial, because it appears to us that the verdict was against the law and the evidence. Of the property, which is the subject of the alleged trespass, the defendant was the general fee simple owner, by purchase from Hardesty, the former owner. The prosecutor was at most a bailee, having a special or qualified property. A controversy arose between them as to the right of the prosecutor to retain the property until paid the expenses of keeping, and as to the quantum or proper charge for these expenses. The defendant, the. owner, without a breach of the peace, took possession of his property; leaving the prosecutor to his legal remedy against himself or Hardesty, which ever was liable for his demand. It certainly was not the purpose of the act of February 1823, upon which this prosecution is founded, to convert every civil injury, by trespass to real or personal property, *into*an indictable misdemeanor; but it was intended to apply to acts of trespass upon the property of another, committed knowingly and wilfully, but not feloniously; which the Court interprets to mean, without col-our of title or claim of right, bona fide, and not feigned or pretended for the occasion. If the defendant did not commit the alleged trespass knowingly and wilfully upon the property of the prosecutor, *but on the contrary, believed it to be his own, and that he had a bona fide right to it, he was not amenable to prosecution for a misdemeanor, under the act of February 1823; though he may have been guilty of a civil trespass. A majority of the Court is of opinion that the facts certified in this case did not warrant the jury in finding a verdict of guilty, because these facts certainly do not establish that the defendant took possession of and carried away property of the prosecutor wilfully, without bona fide colour of title or claim of right, and knowing or believing it was not his own. Therefore the judgment is to be reversed, the verdict set aside, and the cause remanded, for a new trial to be had therein, in conformity with the foregoing opinion of the Court.

*337bOMAX, J.

I concur with the other

members of the Court in their judgment upon the sufficiency of the indictment, and that there was no error in discharging the jury at the first trial of the case. But I do not concur with them in setting aside the verdict, which, upon a subsequent trial, was rendered by the jury.

It being the province of the jury to decide upon the evidence, and to draw such inferences from the proofs and circumstances as were reasonable, I think the conviction should not be disturbed, unless it be seen that it was contrary to law, and clearly unsustained by any proofs presented to the jury. I am of opinion that the jury were well warranted, upon the proofs exhibited in the record, to find the defendant guilty of “knowingly and wilfully, without lawful authority, but not feloniously, taking and carrying away personal property belonging to another.” Indeed, that the jury could not well have found otherwise. The evidence shewed that Piles, returning home from Marion, requested Stout, the prosecutor, as by authority from Hardesty, the proprietor or the hogs, that he “should take care of the hogs *for the said Hardesty, if the defendant had not taken them; and that he, the said Hardesty, would pay him for the keeping of the said hogs.” Immediately after the request so communicated, Stout penned the hogs, and kept and provided for them. Some weeks after the hogs were put into the pen, as aforesaid, by the prosecutor as aforesaid, and before they were taken away by the defendant, the said Hardesty sent word to the prosecutor, (Stout,) by one Woodfield, to take care of the hogs, and he would pay him for so doing; and not to give them to Dye (the defendant). What was meant by taking care of drove hogs, intended for the market as pork, the jury could have no difficulty in inferring: they were to be taken care of and provided for as pork. This message by Woodfield, confirmatory of the message communicated by Piles, it would seem from the proofs, must have been delivered to Stout within the first four weeks after the hogs were penned. It may have been delivered within a much less period. These proofs went strongly to establish a vested property in Stout as the bailee of Hardesty; with a right in the former to demand compensation for the keep of the hogs; and a possession and a lien upon the hogs, until that compensation was satisfied. Por whilst he was taking care of the hogs, as requested by Hardesty, he was conferring an additional value upon them by the attention he was bestowing, and the food he was providing for them: without which he could not, as requested, have taken care of them in the mode which the jury might well have found was intended by Hardesty, and understood by Stout. Jackson v. Cummings, 5 Mees. & Welsb. 342; Scarfe v. Morgan, 4 Mees. & Welsb. 270. There is nothing in the proofs which bound the jury to consider that the defendant had acquired any interest in the hogs, until he obtained from Hardesty the written evidence of his purchase, which, as it would seem, must have been some four weeks *after the hogs were penned; and after the relation of bailor and bailee for compensation, had commenced between Hardesty and Stout. The jury were warranted by the proofs in finding that the defendant had knowledge of that relation almost simultaneously with its commencement, and that he ought to have known it from the mere circumstance of Stout’s possession, which should have put him upon enquiry by what right that possession was held. When the defendant became the purchaser of the property, he did not, by his purchase, supersede or extinguish the rights and obligations which had been continuing for four weeks, in the relation of bailor and bailee between Hardesty and Stout. In regard to that, he substituted himself, at least as to the lien, in the place of Hardesty. His purchase gave him the power at once to terminate that relation, or to continue the same relation as between himself and Stout. It was not until the expiration of nine weeks after the hogs were penned, and five weeks after Dye had purchased them, that he made any demand upon Stout for the hogs; or, so far as is proved, ever made known to Stout that he had become the purchaser. Were the jury unwarranted to infer from such circumstances, that the relation of bailor and bailee, with all the rights and obligations incident to it, were renewed as between the defendant and the prosecutor, in full force, as they had before existed between the prosecutor and Hardesty. During the period of the nine weeks the hogs had consumed 16 bushels of corn that the prosecutor had provided them, worth from 25 to 37J<¡ cents per bushel. When the demand was made by the defendant for the hogs, the prosecutor, after making some overtures for the purchase of them, refused to give them up to the defendant, unless he was paid for the keeping them: the amount of which, however, was omitted to be stated by Stout. The defendant thereupon declaring that he would pay nothing for the keeping, in the ^presence of the prosecutor, pulled down the pen, and drove the hogs away. In the proof of these circumstances, I do not think the jury erred in regarding the hogs as belonging to the prosecutor, at least by special property; which the law will protect, even as against the owner of the general property himself, as effectually as if that special property had been absolute. The penalties of the statute are designed to protect against trespasses, all property belonging to another, whether holding for the time being, a limited or an absolute interest in the same. The lien, as against the general proprietor, was not in any manner waived by the prosecutor. It may indeed have been incumbent upon Stout to have stated the amount of his charge for keeping; but he may have been deterred from doing so, nor was it at all necessary *338that he should have done so, after the defendant’s declaration, that he would pay nothing whatsoever for the keeping. There is nothing in the record to shew satisfactorily, if at all, that Dye put his claim to the possession of the hogs, which he forcibly took, upon any such ground as a bona fide controversy as to the right of property in himself, or the want of right in the prosecutor. His deportment, in taking possession, manifests only his refusal to pay anything for the keep, and a taking and carrying away per fas aut nefas. The record shews no ground for supplying, by any legal intendment, the defendant with the exculpation arising out of a controversy bona fide, in regard to the title in the property, when he himself pretended no such ground of justification or excuse at the time the trespass was committed. *Nor*did he, upon that occasion, claim any exculpation by reason of any complaint as to the measure of Stout’s compensation, claimed for keeping, but utterly refused to pay anything whatever on that account. Even in the case of felonies, the law protects the special property of the bailee against the *larceny of the bailor or general proprietor; much more readily ought the law in this case, to be applied to vin-

dicate the former against the trespasses of the latter. It was, as matters of fact, for the jury to decide upon the evidence and the circumstances of the case, whether there was any such exculpatory matter in the case as a bona fide controversy between the defendant and the prosecutor as to rights of property. Their verdict gives the negative to any such ground of exculpation. It was in like manner for them to decide whether the circumstances shewed a special property in the prosecutor, which he was justified in retaining, and to decide whether the taking and carrying away that property out of his possession was knowingly, wilfully, without lawful authority, but not feloniously: and all these matters have been affirmatively found by their verdict. The proofs justified, in my opinion, the verdict so found by them; and this Court, therefore, ought not to set it aside. I am for affirming the judgment of the Court below in all things. _