for immoral purposes, and any one guilty of repeated and open lewdness.44

§ 697. Nuisances made specific offenses by statute.There remains to be considered certain offenses, many of them made specific crimes or misdemeanors. These will be discussed in succeeding chapters and include among other offenses obstructing highways, wanton driving, vagrancy, indecent conduct and obscenity, keeping a disorderly house, adulteration of food, violation of factory, shop and mine regulations, and selling intoxicating liquors contrary to

statute.

44 Crouse v. State, 16 Ark. 566; Commonwealth V. Wardell, 128

Mass. 52, 35 Am. Rep. 357; Delany v. People, 10 Mich. 241.

§700. A statutory offense.—At common law animals, as such, had no right to protection from abuse or brutal treatment by man.1 One who mistreated an animal in such a manner as to impair its property value to its owner, might be liable to an action of trespass.2 Under some authorities one who maltreated an animal because of malice toward its owner is liable at common law for malicious mischief, other authorities hold the contrary, while statutes in many states make malicious mischief perpetrated on animals a crime, in which case the malicious intent must exist toward the owner, and not toward the animal.5

At the present time in most American states and in England, there are statutes which render it a criminal offense to cruelly and wantonly beat, wound, mutilate, or kill an animal. Other statutes punish cruel driving or overloading animals, or unnecessary cruelty in not providing food and water.

1 Waters v. People, 23 Colo. 33, 46 Pac. 112, 33 L. R. A. 836, 58 Am. St. 215.

2 Note to 72 Am. Dec. 357.

3 Commonwealth V. Sowle, 9 Gray (Mass.) 304, 69 Am. Dec. 289; Snap v. People, 19 Ill. 80, 68 Am. Dec. 582; State v. Manuel, 72 N. Car. 201, 21 Am. Rep. 455.

4 State v. Beekman, 27 N. J. L 124, 72 Am. Dec. 352; State v. Wheeler, 3 Vt. 344, 23 Am. Dec. 212.

5 State v. Churchill, 15 Idaho 645, 98 Pac. 853, 19 L. R. A. (N. S.) 835, 16 Ann. Cas. 947; People v. Jones, 241 Ill. 482, 89 N. E. 752, 16 Ann. Cas. 332.

These are crimes without regard to the ownership of the animal, and may be committed by the one who owns it. An acquittal of killing an animal with malice toward its owner does not bar prosecution for cruelly killing it."

There are two theories advanced by the courts as the basis for these laws, one that the offenses are punishable under the police powers to prevent corruption of public morals by cruelty to living creatures; the other, that animals have rights like human beings subject to protection. Some of the statutes apply to all animals,10 others specify domestic animals, cattle, or the like.11 A mule is held to be a "domestic animal,"12 a horse to be included among "cattle,"13 but a tame buffalo is not among "cattle." A dog is "a dumb animal"15 and pet birds raised in captivity are included among domestic animals.16

§ 701. Malice or intent as essential to offense.-Malice toward the owner of the animal is not an element of the offense.17 It seems to be sufficient if the provisions of the statute were violated and the accused was actually guilty of a cruel or forbidden act toward an animal, even though he did

6 Commonwealth v. Lufkin, 7 Allen (Mass.) 579; State v. Hambleton, 22 Mo. 452; State v. Avery, 44 N. H. 392; Ex parte Phillips, 33 Tex. Cr. 126, 25 S. W. 629.

7 Irwin v. State, 7 Tex. App. 78. 8 Jenks v. Stump, 41 Colo. 281 93 Pac. 20, 14 Ann. Cas. 914; Bland v. People, 32 Colo. 319, 76 Pac. 359, 65 L. R. A. 424, 105 Am. St. 80; Waters v. People, 23 Colo. 33, 46 Pac. 112, 33 L. R. A. 836, 58 Am. St. 215.

9 State v. Karstendick, 49 La. Ann. 1621, 22 So. 845, 39 L. R. A. 520; Hodge v. State, 11 Lea (Tenn.) 528, 47 Am. Rep. 307.

10 Waters v. People, 23 Colo. 33,

46 Pac. 112, 33 L. R. A. 836, 58 Am. St. 215; Hodge v. State, 11 Lea (Tenn.) 528, 47 Am. Rep. 307. 11 Wilcox v. State, 101 Ga. 563, 28 S. E. 981, 39 L. R. A. 709.

12 State v. Gould, 26 W. Va. 258. 13 State v. Hambleton, 22 Mo. 452.

14 State v. Crenshaw, 22 Mo.

457.

15 McDaniel v. State, 5 Tex. App. 475.

16 Colam v. Pagett, 12 Q. B. Div. 66.

17 People v. Tessmer, 171 Mich. 522, 137 N. W. 214, 41 L. R. A. (N. S.) 433n; Irvin v. State, 7 Tex. App. 78.

not intend to mistreat it.18 Where the charge was knowingly and intentionally overdriving a horse, no specific intent to injure the animal was necessary, it was enough that the driver acted in wanton disregard of its suffering.19

It may be a defense that the animal was killed or wounded to prevent injury to one's property by it, if no other means. of protection were available.20 Punishing an animal for discipline, done in good faith with proper motives, may also be a defense.21

§ 702. What acts indictable.—It is said that any unjustifiable, wilful or needless killing, even if done without torture, when the slayer was angry, is punishable under the statutes.22 Loosing a fox to be hunted with dogs,23 cock-fighting,24 dogfighting,25 docking a horse's tail,26 shooting at live pigeons during a shooting match as a test of skill in marksmanship,27 have been held punishable. Other courts hold the shooting at live pigeons not a crime.28

Under a federal statute it is a crime for an interstate carrier to confine animals in transit between states for more than twenty-eight hours without unloading for food, rest and water.

18 Commonwealth v. Edmands, 162 Mass. 517, 39 N. E. 183; Commonwealth v. Curry, 150 Mass. 509, 23 N. E. 212; Commonwealth v. Whitman, 118 Mass. 458.

19 Commonwealth v. Wood, 111 Mass. 408.

20 Stephens v. State, 65 Miss. 329, 3 So. 458, 8 Am. Cr. 157; Farmer v. State, 21 Tex. App. 423, 2 S. W. 767; Thomas v. State, 14 Tex. App. 200.

21 State v. Avery, 44 N. H. 392. 22 State v. Neal, 120 N. Car. 613, 27 S. E. 81, 58 Am. St. 810.

23 Commonwealth v. Turner, 145 Mass. 296, 14 N. E. 130; note to 11

L. R. A. 522; note to 3 Eng. Rul.
Cas. 149.

24 Commonwealth v. Tilton, 8
Metc. (Mass.) 232; Murphy v.
Manning, 2 Ex. D. 307, 3 Eng. Rul.
Cas. 143, 46 L. J. M. C. 211-214, 36
L. T. 592.

25 Commonwealth v. Thornton, 113 Mass. 457.

26 Bland v. People, 32 Colo. 319, 76 Pac. 359, 65 L. R. A. 424, 105 Am. St. 80.

27 Waters v. People, 23 Colo. 33, 46 Pac. 112, 33 L. R. A. 836, 58 Am. St. 215.

28 Commonwealth v. Lewis, 140 Pa. St. 261, 21 Atl. 396, 11 L. R. A.

§ 705. Definition. The keeping of a disorderly house, that is, one kept so as to disturb, scandalize or annoy the community, or persons passing in its vicinity, is indictable at common law. If the building is open to the public, as an inn, there may be an indictment for disorder which affects only those of the public who go inside, and does not annoy any one outside. However, the disorder must affect the public in some manner, and offend persons other than the dwellers in the house.3

A disorderly house has also been defined as a house in which illegal practices are carried on habitually, or to which people resort promiscuously for immoral purposes.*

This latter definition embraces not only disorderly houses proper, but what were known at common law as bawdyhouses, indictable as such, that is, houses kept to receive

.

1 Hackney v. State, 8 Ind. 494; Commonwealth v. Cobb, 120 Mass. 356; State v. Bailey, 21 N. H. 343. 2 State v. Mathews, 19 N. Car. 424; Chicago v. Doe, 195 Ill. App. 582; Guthrie v. State, 80 Tex. Cr. 126, 189 S. W. 256; People v. Claffy, 160 N. Y. S. 760, 95 Misc. 400;

State v. Clough (Iowa), 165 N.
W. 59.

3 Overman v. State, 88 Ind. 6; Cheek v. Commonwealth, 79 Ky. 359.

4 Smith v. Commonwealth, 6 B. Mon. (Ky.) 21; State v. Bailey, 21 N. H. 343; McClain Crim. L. § 1137.