lignant and intentional injury to public works of art, or to public libraries, is indictable, irrespective of malice to individuals.

Malice is to be inferred

§ 1071. Of course the usual line of evidence as to proof and disproof of malice is here admissible.1 Malice may be inferred from declarations; from prior acts; and even from the peculiar malignity of the act.2

from facts.

May be

negatived

by proof of

other mo

tives.

§ 1072. Malice may be negatived by showing that the act was induced by other causes; e. g. that an animal killed was vicious, and was trespassing on the defendant's grounds. But unless an animal thus trespassing is vicious, and cannot be safely driven out, so that killing or maiming him is the defendant's only safe means of riddance, killing or maiming is not justifiable, because the animal trespassed even within a cultivated enclosed field.4 And malice may also be disproved, by proof that the object of the defendant was not malicious but friendly. And on a charge of cruelly overdriving a horse, ignorance and want of malice is a defence.6 § 1072 a. An honest belief in title is a defence to an indictment for a malicious trespass. And this is peculiarly the case when the trespass is the removal of fences.8

1 See supra, §§ 101 et seq. ; and see fully Whart. Crim. Ev. §§ 46, 734 et

seq.

2 See R. v. Welch, 13 Cox C. C. 121; Allison v. State, 42 Ind. 354.

3 R. v. Prestney, 3 Cox C. C. 505; Wright v. State, 30 Ga. 325. See State v. Waters, 6 Jones (N. C.),

276.

Snap v. People, 19 Ill. 80.

5 R. v. Mogg, 4 C. & P. 364. 6 Com. v. Wood, 111 Mass. 408. 7 Infra, § 1077; R. v. Matthews, 14 Cox C. C. 5; State v. Gurnee, 14 Kans. 296; Losser v. State, 62 Ind. 437. Supra, § 87.

8 In Palmer v. State, 45 Ind. 388, the point in the text was thus sustained by Downey, C. J.: "This is a mode of litigation which should not only not be encouraged, but which should receive the unequivocal disap

Honest belief in title to mali

a defence

cious trespass.

The ques

probation of the courts.
tion here involved is one of purely
private interest and concern, in which
the State has not, and should not
have, the least lot or share, except
to furnish the necessary tribunal in
which the parties may settle the con-
troversy between them by the appro-
priate civil action. Who doubts if
the prosecuting parties had known
that they must enter the lists on equal
terms with the defendant, employing
their own attorney instead of using
the State's attorney, and being liable
for the costs of the action which they
might bring, in the event that they
were unsuccessful, in like manner as
the defendant was liable for costs if
the case was decided against him,
that they would have hesitated to
embroil themselves and the vicinity
in a tedious, vexatious, expensive,

Consent of § 1073. Consent of owner, when malice against the owner is alleged, is a defence. But the onus of prov

owner is a defence.

ing consent is with the defence.1

and, perhaps, unnecessary lawsuit ? question whether the contract by There is, in this case, no more real which he held it was valid or not. ground on which to prosecute the de- The court said: We think that a fendant for malicious trespass than criminal prosecution cannot be mainthere would be for an action for mali- tained under the circumstances incious prosecution of this case, to be volved in this case. If any other rulbrought by the defendant here against ing was to prevail, a man might be the prosecuting witnesses. If there liable to prosecutions for acts commitis any question about the defendant's ted whilst in the possession of lands ultimate right to the way in dispute, under contracts declared fraudulent there certainly is no question as to at the end of a long and doubtful lawthe fact that he believed in good faith suit, in the nature of a chancery prothat he had such right, and that it ceeding.' Windsor v. State, 13 Ind. was in pursuance of that belief that 375, was a prosecution for malicious he removed the obstruction which had trespass, committed, as was alleged, been placed in the way by the prose- upon a dwelling-house belonging to cuting parties. Even the witnesses the trustees of a church; the defendfor the State testify that while he ant, claiming to be the owner, had rewas in the act of removing the fence, moved the doors, &c. The court said: he stated that he had a right to have We do not think a criminal prosecuthe lane open.' There is an utter tion a proper mode of trying the title failure of evidence to show any malice to real estate. A person without color on the part of the defendant in re- of title could not defeat a criminal moving the fence. The lane was prosecution for malicious trespass upon thirty feet wide, and, according to lands, by setting up a title thereto in what we know of Virginia worm himself; but where he has a paper fence, it would require four panels to title, apparently valid on its face, and reach across the lane. The number claims, in good faith, to be the owner, of rails required would probably be and is in possession, either by himself forty. The jury found that the dam- or others occupying by his direction, age done to them by removing them he cannot be prosecuted criminally out of the way it is not shown that for a trespass committed thereon by they were otherwise injured was him, to the damage of a third person, fifty cents. This damage, we presume, although such third person, in the is mostly imaginary. Some of the end, may prove to have the better witnesses put the damage at fifteen title.' cents. This is very exact.

"In Howe v. State (10 Ind. 492), the defendant was indicted for destroying timber on the land of which he had possession; but there was a

"In Goforth v. State, 8 Humph. 37, it was decided that where the defendant threw down the fence of another unlawfully and without right, under the impression that he had a

1 State v. Whittier, 21 Me. 341; Welsh v. State, 11 Tex. 368. See supra, §§ 141 et seq.

Injury. such as to impair utility.

must be

§ 1074. Where a statute makes it indictable to injure, there must be proof of injury done, to such an extent as to impair utility, to warrant a conviction.1 § 1075. As in larceny, the owner of the property Owner is injured may be a witness for the prosecution.2

competent witness.

All kinds

of prop

erty are

subjects of

offence.

§ 1076. Not merely personal property, as has been already shown, may be thus protected, but so may real estate, it being held that it is indictable at common law maliciously to injure or deface tombs, maliciously to strip from a building copper pipes or sheetings,5 and to maliciously damage either immovables or movables in any way. The authorities in reference to the malicious injury of trees and plants are elsewhere given.7

Owner's

§ 1077. In prosecutions of this class the prosecutor's title to the property injured cannot be tried. It is enough if he had any special interest, rightful or wrongful, which title is immay have been hurt.8

material.

§ 1078. The manner of describing the property injured 9 has been already stated.

An indictment is sufficiently descriptive of the erty destroyed, if laid to be "one horse beast of the value, &c., of the proper goods and chattels." 10

legal right to do so, he was not guilty of malicious mischief. In Dyc v. Commonwealth, 7 Gratt. 662, it was held that the statute of Virginia, to punish malicious trespass, was intended to apply to trespass upon the property of another, without color of title or claim of right bonâ fide, and not feigned for the occasion; and not to cases where there is a bonâ fide claim of right to the property."

To the same effect is Sattler v. People, 59 Ill. 68.

Indictment

prop- must contain proper But averments.

technical

State v. McDuffie, 34 N. H. 523;
though see R. v. Searing, R. & R.
350; and supra, § 872.
4 3 Inst. 202.

5 R. v. Joyner, J. Kel. 29.

Loomis v. Edgerton, 19 Wend. 419; Resp. v. Teischer, 1 Dallas, 335, where “breaking windows" maliciously was held indictable.

7 Supra, § 1067; infra, § 1082 c. 8 State v. Pike, 33 Me. 361; People v. Horr, 7 Barb. 9; Goforth v. State, 8 Humph. 37; Dawson v. State, 52

1 Com. v. Soule, 2 Met. 21. Infra, Ind. 478; State v. Gurnee, 14 Kans.

unless required by statutory discriminations, the averment of value is unessential.1

The owner of the property must be alleged,2 and the allegation must be proved as laid.3

§ 1079. An indictment for malicious mischief must either expressly charge malice in the defendant against the owner, or otherwise fully describe the offence as indicating general malice. It is not sufficient to set forth. that the act was done "feloniously, wilfully, and maliciously," without averring that it was done "mischievously," or with malice against the owner.5 When, however, the term "maliciously" is not in the statute, it will be both sufficient and essential to use the statutory terms.6

§ 1080. It is not enough to aver that the defendant maliciously injured" the prosecutor's property. This is a conclusion of law, and the facts leading to it must be expressed.8

Yet the means or instruments of injury need not be set out.9 Where there is a killing, as a statutory offence, it is enough to

say,maliciously and wilfully did kill," and where there is a cutting down of trees, under a statute, it is enough to aver, following the statute, that the defendant, the trees, &c., maliciously and wilfully did cut, &c.2

§ 1081. In England, severe penalties have been imposed by statutes on acts calculated to endanger the lives of per- Statutory sons travelling on railroads; and these statutes have been substantially reproduced in many of our States.3 Under these statutes it has been ruled in England that travellers.