p. 481specified defendant did willfully, unlawfully, feloniously and maliciously kill, destroy and poison unto death three* horses of the value of $175, the personal property of persons named.
The second count charged that defendant was guilty of the crime of willfully and unlawfully destroying the personal property of another, contrary to and in violation of section 654 of the Penal Code. The property-named was the same as in the first count, the only difference between the two counts being a variation of five days in the time of the offense.
J. D. Beckwith, for defendant, appellant.
Irving R. Devendorf, for the people, respondent.
The defendant claims that the facts alleged in the indictment and the evidence given upon the trial do not constitute the crime of which the defendant was convicted, and that the indictment should have been dismissed. By section 654 of the Penal Code it is provided that “ a person who unlawfully and willfully destroys or injures any real or personal property of another, in a case where the punishment is not specially prescribed by statute, is punishable as follows: (1) If the value of the property destroyed, or the diminution in the value of the property by the injury, is more than twenty-five dollars, by imprisonment for not more than four years; (2) in any other case, imprisonment for not moré than six months, or by a fine of not more than two hundred and fifty dollars, or by both such fine and imprisonment.” The claim of the defendant is that the-crime, if any, is that of cruelty to animals, under section 655 of the Penal Code, or section 660; that the punishment thereof is specially prescribed by those sections; and that,, therefore, the ease is not within the purview of section 654.. By section 655 it is, among other things, provided that &
p. 482person who unjustifiably injures or kills any animal, or causes it to be done, is guilty of a misdemeanor. By section 660 it is provided that a person who unjustifiably administers any poisonous substánce to an animal is guilty of a misdemeanor. By section 15 of the Penal Code it is provided that “a person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than five hundred dollars, or by both.” The inference from,this section is that, when by some other provision of the Code an offense is simply made a misdemeanor, the punishment is not considered as thereby “ specially prescribed.” By subdivision 27 of section 56 of the Code of Criminal Procedure, courts of special sessions have, in the first instance, exclusive jurisdiction to hear and determine charges of misdemeanors for cruelty to animals. It is not claimed that this case was brought before the grand jury by virtue of a certificate, under section 57, Code Crim. Proe.; so that, apparently, if the theory of the defendant is correct, not only is the crime a misdemeanor, simply, but the remedy by indictment is not proper. Section 654 of the Penal Code is a part of chapter 14 of title 15. This title is, “ Of Crimes Against Property,” and chapter 14 is, “Of Malicious Mischiefs and Other Injuries to Property.” The subject of “ cruelty to animals ” is under another title, and relates rather to the manner in which an act is done than to an interference with the property rights of others. 'The term “ personal property,” used in section 654, cannot, as claimed by defendant, be construed to mean only “inanimate property,” for by the rules of construction furnished by the same Code the term “ personal property ” includes chattels of every description (Pen. Code, § 718, subd. 15 ; People v. Maloney, 1 Parker, 593 ; 2
p. 483Bl. Comm. 387). Section 654 relates to acts “ unlawfully and willfully ” done to the property of another, while sections 656 and 660 relate to acts “ unjustifiably ” done, without reference to the ownership. It looks reasonably clear that it is not the intention of the statute to exclude from the operation of section 654 all acts that might possibly be included in the other sections. By sectiori 677 it is provided that an act or omission which is made criminal and punishable in different ways by different provisions of law may be punished under any one of those provisions, but not under more than one. We are of the opinion that the court below did not err in refusing to dismiss the indictment.
The horses in question died about the 15th or 20th July, 1889, and there is evidence tending to show that the death was caused by poison which the defendant procured to be administered. This, in effect, was testified to by the witness Garlock, who, however, is charged to have been an accomplice. He was, we think, corroborated by other evidence, that tended to connect the defendant with the commission of the crime (Code Crim., Proc. § 399). In the course of his cross-examination, after having testified as follows, “ I don’t know as there was any understanding between Mr. Harris and me, or the district attorney and me, that I would not be prosecuted if I stated to him the matters which I did state,” he was asked the question: “ Did you understand, by making the statement which you did make, you would relieve yourself from prosecution ?” This was objected to, and excluded, and defendant excepted. This should have been admitted ( What. Crim. Ev. § 477). It related to the position of the witness with reference to the complainant and the prosecuting officer, and was competent and material as affecting his credibility. Garlock testified that upon two occasions,—the first about the middle of May, and the second about ten days afterwards,— at the request of defendant, he purchased arsenic. The
p. 484date of the second purchase he fixed by saying that before he got it he read in a newspaper—the
Evening Times, of Little Falls—a statement that a number of Gilboy’s horses were dying. The defendant offered to show that in the months of April, May and June there was in the paper referred to no account of the death of Gilboy’s horses. This was excluded, and exception taken. Garlock had testified that he was sick and confined to the house from the 1st June to about the middle of July, which was about the time the horses in question were poisoned. If, before Garlock was sick, there was no publication, it would reflect on the question whether he made any purchase before the horses in controversy died. The evidence should have been admitted.
Upon the cross-examination of one Horn, a witness for the defendant, the people were allowed to prove that defendant kept at Ilion a place of bad character. This was admitted as bearing upon the character of the witness. Its natural and chief effect was, however, upon the character of the defendant, and the people had no right to attack his character in that way. He was not a witness, and had a right to all legal presumptions in his favor. No sufficient reason is apparent for the admission of the testimony (1 Bish. Crim. Proc. § 1122). The defendant and the Gilboy brothers were competitors in business, and the people were allowed to prove to a considerable extent the state of feeling between them. Among other things, they were allowed to prove in detail actual assaults upon two occasions. It is competent to show against a defendant that he bore towards the party injured enmity of a sort tending to the criminal result (Id. § 1109). Threats are admissible (Id. § 1110). In the present case it is at least doubtful whether the people were not permitted to go too far in this line. Be that as it may, the rulings upon the evidence, above re
p. 485ferred to, cannot, in their effect, be deemed immaterial, and it follows that the defendant is entitled to another trial.
Judgment reversed, and a new trial ordered.
Hardin, P.J., and Martin, J., concur.