207 P. 58 | Cal. Ct. App. | 1922
Petitioner was convicted in the justice court of Douglas township, county of San Joaquin, of the offense charged in a complaint as follows:
"The said Chester W. Messick did, at and in the county and state aforesaid willfully and unlawfully open, tear down and destroy a fence on the inclosed land of another, to-wit, a line fence between the lands of Chester W. Messick and one Edward J. Hughes, situate, lying and being in the Northwest one-quarter of section 3, Township 2 North, Range 8 East, Mount Diablo Base and Meridian."
[1] He was sentenced to pay a fine of fifty dollars and in case of default in the payment to be imprisoned in the county jail until the fine should be satisfied at the rate of two dollars per day. He appealed upon questions of law alone to the superior court of said county wherein the judgment was affirmed. Thereafter he petitioned this court for a writ ofcertiorari, claiming that no offense was stated in said complaint by reason of the failure to allege that the act was done maliciously. It is to be observed that the charge is in the language of subdivision 8 of section
The true situation seems to be that every material element of the crime committed by petitioner is comprehended by this express language of said section: "Every person who willfully commits any trespass by . . . willfully opening, tearing down, or otherwise destroying any fence on the inclosed land of another . . . is guilty of a misdemeanor," and it is sufficient by appropriate allegations in the complaint to set forth that condition.
[2] This was assuredly done, but, if it be conceded that malice is a material element in the charge, then such requirement is satisfied by the terms that were employed in the complaint. The word "malice" implies "an intent to do a wrongful act." (Subd. 4, sec. 7, Pen. Code; People v. Ah Toon,
In Bise v. United States, 144 Fed. 374 [7 Ann. Cas. 165, 74 C. C. A. 1], it was declared by the circuit court of appeals, eighth circuit, that the words, "unlawfully and *343 feloniously" mean "that the act which they characterize proceeded from a criminal intent and evil purpose and thus exclude all color of right and excuse for the act"; citing cases.
Petitioner refers to certain decisions from other jurisdictions apparently in conflict with the foregoing but they are not controlling herein. As the question was directly decided by the highest court of this state in the Ahart matter it is unnecessary to discuss the subject further.
The alternative writ is discharged and the peremptory writ denied.
Hart, J., and Finch, P. J., concurred.