33 $307. Malicious mischief.-This offense includes all acts of unnecessary and malicious injury to the property of others which impair the utility or diminish the value of such property to a material extent.32 It was generally indictable at common law,3 and proof of the destruction of the property was necessary;34 and now statutes are found in most states defining the crime, regulating its punishment and sometimes expressly enumerating what acts must be proved to constitute it.35 36 § 308. Malicious intent.-Usually proof of the injury alone is not enough, and this is always the case where a statute requires that it shall be proved to have been wantonly or maliciously inflicted. Malice, it is said, must be alleged and proved. But malice need not be express, nor need it be proved by direct evidence. It may be inferred to exist from proof that the injury was done to the property to secure revenge on its owner. In 37 Hudson v. State, 9 Yerg. (Tenn.) 407; White V. State, 3 Heisk. (Tenn.) 338; State v. Brick, 2 Harr. (Del.) 530; State v. Garvey, 28 La. Ann. 925, 927, 26 Am. 123; Laros v. Commonwealth, 84 Pa. St. 200; Yates v. State, 47 Ark. 172, 174; Belote v. State, 36 Miss. 96, 118, 72 Am. Dec. 163, 2 East P. C. 657, 658; Reg. v. Gould, 9 C. & P. (38 Eng. C. L.) 364; Johnson v. State, 119 Ga. 257, 45 S. E. 960. 33 38 March 12, 1887 (St. 1886-87, p. 112, c. 95), maliciously depositing and exploding any explosive near a building with intent to injure same or to injure a human being is a felony. In re Mitchell, I Cal. App. 396, 82 Pac. 347. See Moody v. State, 127 Ga. 821, 56 S. E. 993, as to mutilating a trespass notice maliciously. 36 See next note; Knudson v. State (Tex. Cr. App., 1909), 120 S. W. 878. 37 The malicious intent essential to constitute the offense of malicious mischief may be inferred from the nature of the act and the circumstances of the case. State v. Tarlton (S. Dak.), 118 N: W. 706. People v. Smith, 5 Cow. (N. Y.) 258, 260; Res. v. Teischer, I Dall. (Pa.) 335; Commonwealth v. Leach, I Mass. 59; State v. Batchelder, 5 N. H. 549, 552; State v. Simpson, 2 Hawks (N. Car.) 460, 461. State v. Martin, 141 N. Car. 832, Cush. (Mass.) 558, 561; North Caro53 S. E. 874. 38 Thompson v. State, 51 Miss. 353, 356; Commonwealth v. Walden, 3 lina v. Vanderford, 35 Fed. 282, 287; State v. Tarlton (S. Dak.), 118 Johnson v. State, 61 Ala. 9, 11; HarN. W. 706; Commonwealth v. Byard ris v. State, 73 Ga. 41, 43; Goforth (Mass., 1908), 86 N. E. 285, constru- v. State, 8 Humph. (Tenn.) 37 39; ing Rev. Law, c. 208, § 100, punish- Lossen v. State, 62 Ind. 437, 440; ing the willful and malicious cutting Hughes v. State, 103 Ind. 344, 347, of trees. In California, by Act 2 N. E. 956; Pippen v. State, 77 Ala. this connection the declarations of the accused uttered at or about the time that he injured or destroyed the property are very useful, and are relevant as a part of the res gesta to illustrate his state of mind. And where the accused stood charged with maliciously destroying the property of a church the state was permitted to put in evidence declarations evincing enmity on his part towards the officers and members of the church while the accused was engaged with them in the business of the church.” 39 40 A malicious intent may be inferred from the means employed or the instrument used, or from the wantonness and cruelty by which the act of the accused was accompanied. Portions of the property injured, if properly identified by independent evidence may be received in evidence." Whether the accused acted with a malicious intent is a question for the jury to determine.12 81, 82; Duncan v. State, 49 Miss. 331, 339; Brady v. State (Tex. Cr., 1894), 26 S. W. 621; Woodward v. State, 33 Tex. Cr. 554, 28 S. W. 204; State v. Flynn, 28 Iowa 26, 27; State v. Brigman, 94 N. Car. 888, 889; Brown v. State, 26 Ohio St. 176, 183. Contra, Reg. v. Tivey, I Den. C. C. 63; Territory v. Crozier, 6 Dak. 8, 10, 50 N. W. 124. Cf. Johnson v. State, 61 Ala. 9, 11; Funderburk v. State, 75 Miss. 20, 21 So. 658; Edwards v. State, 115 Ala. 52, 22 So. 564; Commonwealth v. Shaffer, 32 Pa. Super. Ct. 375. The word "“malicious" in a statute providing for the punishment of one who unlawfully destroys property must receive the construction usually given to it in criminal statutes. It is no defense that the accused was not prompted to his act by actual ill will to the owner of the property. State v. Boies, 68 Kan. 167, 74 Pac. 630. "People v. Ferguson, 119 Mich. 373, 78 N. W. 334. 40 State v. Enslow, 10 Iowa 115, 117; Commonwealth v. Walden, 3 Cush. (Mass.) 558, 561; Hobson v. State, 44 Ala. 380, 381; State v. Mc Dermott, 36 Iowa 107; Harris v. State, 73 Ga. 41, 44; Shirley v. State (Tex., 1893), 22 S. W. 42. "People v. Boren, 139 Cal. 210, 72 Pac. 899. 42 McClurg v. State, 2 Ga. App. 624, 58 S. E. 1064. "The only facts established by the verdict are, that the mare was injured by the defendant by the discharge of a gun loaded with powder and shot, and that the act was done willfully; but an act may be unlawful, and may be done willfully, with or without malice, according to the evidence of the motive, and of the circumstances attending the transaction. The evidence, therefore, should have been submitted to the jury, with instructions that they would not be warranted in finding a verdict of guilty, unless the injury charged in the indictment was done by the defendant, not only willfully, but also maliciously; that if the injury was done intentionally and by design, and not by mistake, accident. or inadvertence, that would fully support the allegation in the indictment that it was done willfully, according 43 § 309. Ownership and value of property-Evidence that the accused acted in good faith.-The ownership of the property, whether it be real or personal, may, if possession is shown, be proved by parol, but must be proved substantially as laid,** though not beyond a reasonable doubt.45 The accused may prove by oral or written evidence that he in fact owned the property," which is a valid defense," or that (believing that he did) he had taken legal advice and acted in accordance therewith.48 All facts tending to show that he was acting in good faith, or under a misapprehension of his rights when he injured or destroyed the property are relevant. Proof of a total destruction is not necessary to sustain an allegation of maliciously destroying or injuring 49 to the true meaning of the statute. The by the alleged owner is sufficient. People v. Coyne, 116 Cal. 295, 48 Pac. 218; State v. Semotan, 85 Iowa 57, 59, 51 N. W. 1161, even though he is not the sole owner. People v. Horr, 7 Barb. (N. Y.) 9, 12. 46 47 State v. Zinn, 26 Mo. App. 17, 18. Commonwealth v. Shaffer, 32 Pa. Super. Ct. 375. People v. Kane, 142 N. Y. 366, 369, 37 N. E. 104; People v. Stevens, 109 N. Y. 159, 163, 16 N. E. 53. 10 Lossen v. State, 62 Ind. 437, 442; Palmer v. State, 45 Ind. 388, 391; Barlow v. State, 120 Ind. 56, 58, 22 N. E. 88; Goforth v. State, 8 Humph. (Tenn.) 37; Reg. v. Langford, 1 C. & M. 602; Sattler v. People, 59 Ill. 68, 70; State v. Flynn, 28 Iowa 26, 27; Commonwealth v. Drass, 29 W. N. C. (Pa.) 463, 465, 146 Pa. St. 55, 60, 23 Atl. 233; Reg. v. Mathews, 14 Cox C. L. 5, 7; State v. Haney, 32 Kan. 428, 430, 4 Pac. 831; Adams v. State, 47 Tex. Cr. 35, 81 S. W. 963. At common law the owner of the property was not a competent witness because of interest. Blackstone v. State, 15 Ala. 415, 417; Pike v. State, 35 Ala. 419. property.50 Proof of value is necessary and relevant only where the degree of the crime or the penalty depends on the value of the property destroyed.51 54 § 310. Maliciously injuring animals.—Killing, wounding, maiming, injuring or disfiguring the animals of another is a very common form of malicious mischief,52 and is indictable at common law.5 53 The killing, maiming or injuring must always be proved to be willful. An allegation of injuring an animal which is described under its generic name is sustained by proof of an injury to any species of the animal. Thus proof of injuring horses, pigs, asses or mares, will sustain an allegation of injury to cattle." And an allegation of injuring any species of animal is sustained by proof of injury to any one of that species irrespective of its age, sex or condition.56 The question whether an indictment for maliciously injuring personal property, or for killing or maiming domestic animals can be sustained by proof of maiming, wounding or killing a dog has been variously decided.57 Evidence that the injured 50 State v. McBeth, 49 Kan. 584, 588, 31 Pac. 145; Brown v. State, 26 Ohio St. 176, 183; State v. Cole, 90 Ind. 112, 113; State v. McKee, 109 Ind. 497, 499, IO N. E. 405; Hannel v. State, 4 Ind. App. 485, 486, 30 N. E. 1118. Holder v. State, 127 Ga. 51, 56 S. E. 71; State v. Heath, 41 Tex. 426, 428; State v. Garner, 8 Port. (Ala.) 447, 448; Commonwealth v. Cox, 7 Allen (Mass.) 577, 578; Walker v. State, 89 Ala. 74, 75, 8 So. 144. If the defendant claims that he destroyed the property with the owner's consent, the burden is on him. Ritter v. State, 33 Tex. 608, 611; McClurg v. State, 2 Ga. App. 624, 58 S. E. 1064; Commonwealth v. Shaffer, 32 Pa. Super. 375. 52 Davis v. Commonwealth, 30 Pa. St. 421, 424; Atwood v. State, 106 S. W. 953, 84 Ark. 623, not reported in full. People v. Smith, 5 Cow. (N. Y.) 63 258, 259, in which the court says: "The direct tendency is a breach of the peace. What more likely to produce it than wantonly killing, out of mere malice, a useful domestic animal?" 54 Swinger v. State, 51 Tex. Cr. 397, 102 S. W. 114. 55 Rex v. Moyle, 2 East P. C. 1076; Rex v. Mott, 1 Leach C. L. 85n; Rex v. Chapple, R. & R. C. C. 77; State v. Hambleton, 22 Mo. 452; Rex v. Whitney, I Moody C. C. 3; Oviatt v. State, 19 Ohio St. 573; Snap v. People, 19 Ill. 80, 68 Am. Dec. 582; State v. Grimes, 101 Mo. 188, 190, 13 S. W. 956. 56 Shubrick v. State, 2 S. Car. 21, 22; Gholston v. State, 33 Tex. 342, 343. Contra, where the statute enumerates various species of animals all belonging to one genus. animal was running at large, or even that it was trespassing, is irrelevant if it appear from all the evidence that the injury was malicious.58 As a general rule, malice towards the owner of the animal must be proved.59 § 311. Injuries to grain, trees, crops, etc.-It is often provided by statute that it shall be an offense willfully and maliciously to 377; State v. M'Duffie, 34 N. H. 523, 69 Am. Dec. 516; Kinsman v. State, 77 Ind. 132, 135; State v. Doe, 79 Ind. 9, 41 Am. 599; State v. McKee, 109 Ind. 497, 499, 90 N. E. 405; Sosat v. State, 2 Ind. App. 586, 589, 28 N. E. 1017; Nehr v. State, 35 Neb. 638, 642; 53 N. W. 589, 17 L. R. A. 771. Contra, Commonwealth v. Maclin, 3 Leigh (Va.) 809; State v. Harriman, 75 Me. 562, 46 Am. 423n; Patton v. State, 93 Ga. 111, 112, 116, 19 S. E. 734, 24 L. R. A. 732. 58 Branch v. State, 41 Tex. 622; Wallace v. State, 30 Tex. 758; Cryer v. State, 36 Tex. Cr. 621, 37 S. W. 753, 38 S. W. 203; Snap v. People, 19 Ill. 80, 68 Am. Dec. 582; State v. Fierce, 7 Ala. 728; State v. Davis, 2 Ired. (N. Car.) 153; State v. Waters, 6 Jones (N. Car.) 276, 277; State v. Brigman, 94 N. Car. 888, 890; Bennefield v. State, 62 Ark. 365, 35 S. W. 790. Contra, McMahan v. State, 29 Tex. App. 348, 349, 16 S. W. 171, where defendant was allowed to prove that his field was surrounded by a good fence. But evidence of the thievish and unmanageable character of the trespassing animal is relevant, not to justify maiming or wounding it, but to show that defendant's motive was to protect his crop and not spite toward the owner. Sosat v. State, 2 Ind. App. 586, 592, 28 N. E. 1017; Wright v. State, 30 Ga. 325, 327, 76 Am. Dec. 656; Farmer v. State, 21 Tex. App. 423, 2 S. W. 767; Bennefield v. State, 62 Ark. 365, 35 S. W. 790. 50 State v. Wilcox, 3 Yerg. (Tenn.) 278, 279; Hampton v. State, 10 Lea (Tenn.) 639, 641; Hobson v. State, 44 Ala. 380, 381; State v. Latham, 13 Ired. (N. Car.) 33, 35; Hill v. State, 43 Ala. 335; Shirley v. State (Tex., 1893), 22 S. W. 42; Shepherd's Case, 2 Leach C. C. 609, 610. Contra, Brown v. State, 26 Ohio St. 176, 183; State v. Phipps, 95 Iowa 491, 64 N. W. 411. Evidence that animals found and ate poison where it was exposed with an intent that they should find and eat it will sustain a charge of causing them to eat it. Commonwealth v. Falvey, 108 Mass. 304, 307. Where one was indicted for maliciously poisoning the horses of another, the prosecution was allowed to prove that the defendant had bought poison, saying it was to kill rats, that he had never used it for that purpose, but that he had every opportunity to administer it to the horses, and a motive to do so. Croy v. State, 32 Ind. 384, 385. An allegation of poisoning animals by one means is sustained by proof of a means substantially similar. Commonwealth v. McLaughlin, 105 Mass. 460, 463. |