MALICIOUS MISCHIEF. An expression applied to the wanton or reckless destruction of property, and the wilful perpetration of injury to the person. Washb. Cr. L. 73.
The term is not sufficiently defined as the wilful doing of any act prohibited by law, and for which the defendant has no lawful excuse. To sustain a conviction of the of fence of malicious mischief, the jury must be satisfied that the injury was done either out of a spirit of wanton cruelty or of wick ed revenge. Jacob, Law Diet. Mischief, Mali cious; Com. v. Walden, 3 Cush. (Mass.) 558; State v. Robinson, 20 N. C. 130, 32 Am. Dec. 661; State v. Helmes, 27 N. C. 364 ; Brown's Case, 3 Greenl. (Me.) 177. See People v. Burkhardt, 72 Mich. 172, 40 N. W. 240; Brady v. State (Tex.) 26 S. W. 621; State v. Mc Beth, 49 Kan. 584, 31 Pac. 145.
This is a common-law offence ; Loomis v. Edgerton, 19 Wend. (N. Y.) 419; Respiiblica v.. Teischer, 1 Dall. (Pa.) 335, 1 L. Ed. 163 ; Com. v. Wing, 9 Pick. (Mass.) 1, 19 Am. Dec. 347; State v. Watts, 48 Ark. 56, 2 S. W. 342, 3 Am. St. Rep. 216 ; contra, State v. Clark, 29 N. J. L. 96 ; Kilpatrick v. People, 5 Den. (N. Y.) 277; but there are in many states statutes on the subject, and it is now considered rather with reference to statutes ; 2 McCl. Cr. L. § 811, where will
be found an excellent classified collection of the statutes and cases under them. One may be convicted of maliciously injuring the property of another, without knowing who the owner is ; State v. Phipps, 95 Ia. 491, 64 N. W. 411; but it is necessary to allege that tne rightful possession of the property was in some person other than the defendant ; Woodward v. State, 33 Tex. Cr. R. 554, 28 S. W. 204. In Georgia the statute is held applicable only to inanimate property and not to the case of a dog killed ; Patton v. State, 93 Ga. 111, 19 S. E. 734, 24 L. R. A. 732; but see Nehr v. State, 35 Neb. 638, 53 N. W. 589, 17 L. R. A. 771. The destruction of a boat by order of the owner of a pond, in an effort to protect his possession of the lat ter from trespasses of the owner of the boat who had repeatedly taken the boat back to the water after the defendant had hauled it away, is not malicious mischief ; People v. Kane, 142 N. Y. 366, 37 N. E. 104; and see id., 131 N. Y. 111, 29 N. E. 1015, 27 Am. St.
Rep. 574, where the advice of counsel was held no defence.