110 Mass. 401
Mass.
1872
Colt, J.

Malicious mischief or damage amounting to a crime is defined by Blackstone to be an injury done “ either out of a spirit of wanton cruelty, or black and diabolical revenge.” 4 Bl. Com. 244. This definition was approved and adopted in Commonwealth v. Walden, 3 Cush. 558, 561. The defendant was there indicted for wilfully and maliciously destroying the personal property of another, and it was held that the word maliciously, as used in the statutes relating to malicious mischief, was not sufficiently defined as the wilful doing of any act prohibited by law for which the defendant has no lawful excuse, but the jury must be satisfied that the injury was done out of a spirit of cruelty, hostility or revenge. This element must exist in all those injuries to real or personal property done wilfully and maliciously which *403are enumerated and made criminal in the several statutes, among the more recent of which is the statute including the act charged in this indictment. The injury must not only be wilful, that is, intentional and by design, as distinguished from that which is thoughtless or accidental, but it must in addition be malicious in the sense above given. The wilful doing of an unlawful act without excuse, which is ordinarily sufficient to establish criminal malice, is not alone sufficient under these statutes. The act, although intentional and unlawful, is nothing more than a civil injury, unless accompanied with that special malice which the words “ wilful and malicious ” imply.

The distinction was called to the attention of the court in the instructions which were asked, and it was omitted in those which were given. Exceptions sustained.