People v. Kane — 39 N.Y. St. Rep. 751

Majority

p. 751

The People, Resp’ts, v. Henry E. Kane and William Ford, App’lts.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

1. Malicious mischief—Indictment.

An indictment stating that defendant unlawfully destroyed a boat of' a

p. 752

specified value belonging to, etc., is sufficient under § 654 of the Penal Code.

2. Same—Defense.

It is no defense to such indictment that such destruction was committed under advice of counsel.

Appeal from judgment of the court of general sessions of Suffolk county, convicting defendants of the crime of malicious mischief.

Defendants were indicted for unlawfully destroying a boat which was the property of Lewis H. Davis, being of the value of sixty dollars. It appeared that the father of the defendant Kane was the owner of a mill pond; that Lewis H. Davis, who owned a farm adjoining said pond, persisted in keeping a boat on said pond, and notwithstanding repeated notices to remove it, refused to do so; that defendant’s father went to Europe, leaving the pond in his son’s charge; that, acting Under advice of counsel, defendants, finding the boat on the pond, destroyed it in broad day light near a public highway where people were passing and could see it done.

■ Livingston Smith, for app’lts; Benjamin H. Reeve, for resp’ts.

—The defendants were indicted under § 654 of the Penal Code, which provides as follows : “A person who unlawfully and wilfully destroys or injures any real or personal property of another in a case where the punishment thereof is not specially prescribed by statute, is punishable as follows : ” etc., and tire indictment stated specifically that the defendants unlawfully injured and destroyed a boat which was the property of' Lewis S. Davis, and being of the value of sixty dollars.

The defendants were tried and found guilty at a term of the court of sessions in Suffolk county, and this appeal is from such conviction.

Our examination of the case leads us to the conclusion that the indictment was properly framed and contained a criminal offense under the statute. The testimony also sustained the indictment and proved the defendants guilty of the offense. The claim that the boat was destroyed under advice of counsel constituted no defense to the indictment and there were no errors committed upon the trial.

The conviction should be affirmed.

Barnard, P. J., and Pratt, J., concur.