Does the offense of malicious destruction of property, MCL 750.377a; MSA 28.609(1), require a finding of specific intent? The question *454 raised is of first impression. On April 16, 1980, defendant was found guilty by a jury of malicious destruction of property and resisting or obstructing a police officer in the discharge of his duty, MCL 750.479; MSA 28.747. Sentenced to one year in jail, he appeals of right.
Defendant was charged with damaging an automobile belonging to David and Martha Simmer-man. Testimony established that at approximately 8:30 p.m. on October 17, 1979, defendant beat on the automobile with his hands and feet while it was parked in front of the Simmerman home. Approximately $350 worth of damage resulted.
Several witnesses testified that the defendant appeared intoxicated at the time of the offense, although no testimony was presented during trial regarding the quantity of alcohol consumed. At the preliminary examination, Howard VanValkenburgh testified that he had been with defendant from 1:30 p.m. until 8:30 p.m. on October 17, 1979, and that the two had consumed a substantial quantity of whiskey during that time.
A City of Howell police officer, responding to a call at 8:45 p.m. on October 17, 1979, asked the defendant for identification, told the defendant that he was under arrest, and attempted to place him in the patrol car. The officer said that defendant began fighting and kicked him in the thigh as defendant was being pulled into the patrol car. While in the car, the defendant used loud and vulgar language and spat on a police officer’s coat.
During trial, the defendant asked the court to instruct the jury that specific intent is an element of malicious destruction of property and that voluntary intoxication is a defense to that crime. The court refused, and defendant, on appeal, claims that the refusal to instruct the jury on voluntary intoxication constituted error requiring reversal.
*455 The defendant was charged under MCL 750.377a; MSA 28.609(1), which provides:
"Any person who shall wilfully and maliciously destroy or injure the personal property of another, by any means not particularly mentioned or described in the preceding section, if the damage resulting from such injury shall exceed $100.00, shall be guilty of a felony. If the damage done shall be $100.00 or less, such person shall be guilty of a misdemeanor.”
If the statute requires a finding of specific intent, voluntary intoxication may be shown to negate that intent.
People v Kelley,
Specific intent is a nebulous concept. In
Roberts v People,
"[W]hen a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found by the jury, as matter of fact, before a conviction can be had.”
Specific intent has been held to be an element of statutory crimes that include an express requirement of intent. In
People v Jones,
Specific intent has been held to be an element in some statutory crimes that do not state an intent element. In Kelley, supra, 619, this Court observed that convictions for crimes involving larceny, such as armed robbery and burglary, require a showing of specific intent because a larceny is not merely a wrongful taking, which would be a mere trespass, but is a wrongful taking with felonious intent.
The malicious destruction of property statute does not contain the word "intent” but does require that the conduct be "willful and malicious”. The Michigan Criminal Jury Instructions define these terms:
"The phrase 'wilfully and maliciously’ means that the defendant (1) committed the act, (2) while knowing it to be wrong, (3) without just cause or excuse, and (4) did it intentionally or (5) with a conscious disregard of known risks to the property of another.” CJI 32:1:01.
The commentary to the jury instructions states that there must be a willful act aimed at the property in question and an intent to do damage. CJI, Commentary, p 32-13.
The word "willfulness” has been called a "word of many meanings, depending upon the context in which it is used”.
People v Cook,
Like "willful”, "malice” is a term of various meanings, depending upon its context. In
People v Tessmer,
While a Michigan appellate court has never determined whether "willful and malicious” in the malicious mischief statute should be interpreted to mean the broad general intent or a narrower intent, the Supreme Court did address the problem in the context of the now-repealed statute proscribing interference with the business of a railroad,
Unlike the statutory crimes discussed in Petheram and lehl, the malicious destruction of property statute under which this defendant was charged is an affirmance of the common-law crime of malicious mischief. We therefore interpret the statute consistently with the common-law crime and find that in order to convict under the statute a specific intent to damage property or to injure its owner should be found.
Even if the malicious destruction of property statute were not an embodiment of the common-law crime, specific intent would be a necessary element. This Court has observed that such an intent is required to commit the crime of larceny, for without that element, larceny would be a mere trespass.
Kelley, supra,
621. Similarly, if a defendant lacking the intent to damage property injures that property, he has committed only a trespass.
People v Severance,
We find that in order to commit the crime of malicious destruction of. property, a defendant must have the intent to injure or destroy the property. If a defendant voluntarily becomes so intoxicated that he in fact does not have the requisite intent, he cannot be convicted of the crime.
People v Crittle,
*459 Defendant also argues that the trial court erred in refusing to admit the preliminary examination testimony of Howard VanValkenburgh, who had testified that he observed defendant drink a quantity of whiskey on the afternoon and evening of the crime. As it is necessary to remand this case for a new trial for other reasons, we decline to address this issue. 1
Reversed and remanded for a new trial.
Notes
On appeal, the parties dispute whether defendant exercised due diligence in attempting to produce VanValkenburgh, thus making him an unavailable witness under MRE 804(a)(5). We believe that a substantial question exists as to whether the defense, as well as the prosecution, must demonstrate due diligence before a witness will be considered "unavailable”. As neither party addressed this issue in the trial court or on appeal, it is not properly before this Court.
We observe, however, that VanValkenburgh’s preliminary examination testimony established that his contact with the defendant was reasonably contemporaneous with the crime and tended to show the defendant’s state of mind at the time of the act. The witness therefore may have qualified as a res gestae witness.
People v Phillips,