State v. . Jackson, 34 N.C. 329

State v. . Jackson

34 N.C. 329 | N.C. | 1851

The defendant is indicted for malicious mischief in burning couple of plows and gears belonging to the prosecutor. The crime consists in the willful destruction of personal property from actual ill-will or resentment towards its owner or possessor. S. v. Robinson, 20 N.C. 129; 4 Bl. Com., 254. The charge of his Honor was in every respect correct. There cannot be a doubt that the acts charged upon the defendant, if true, amounted to malicious mischief, nor did it make any difference where the articles destroyed were found by him, or where burnt; the crime was complete. The judgment, therefore, would be confirmed but for a fatal defect in the indictment itself. there was no motion below to arrest the judgment, and, of course, the indictment was *228 not particularly brought to the notice of the judge. An indictment is a compound of law and fact, and must so set out the offense that the court may be able, without resorting to any evidence dehors, to perceive the alleged crime. It must be certain to every intent. It is of the (331) essence of the crime charged against the defendant that it was perpetrated from ill-will against the owner of the property destroyed. It is necessary, therefore, that the indictment should either directly charge this malice towards the owner, or so describe the offense, that the court may see that the charge is sufficiently explicit to support itself. 1 Ch. Cr. L., 172; S. v. Cockerham, 23 N.C. 381. The indictment in this case does not charge the crime to have been perpetrated from malice against the owner. In S. v. Simpson, 9 N.C. 460, and S. v. Scott,19 N.C. 35, the Court decide that it was not necessary so to lay the offense, because the indictment was according to the precedents; but in both those cases the crime was sufficiently charged without those words. The charge in Scott's case was, "unlawfully, wickedly, maliciously, and mischievously," etc.; Simpson's, "unlawfully, wickedly, maliciously, mischievously," etc. In each of those cases the generic term designating the crime is used, and, therefore, we presume that the precedents did not call for the express charge of malice against the owner because the description contained in the indictment necessarily embraced it. In the case before us, the word"mischievously" is omitted, and the description is legally incomplete. If the indictment had gone on and charged malice against the owner the charge would have been sufficiently explicit to support itself. An indictment for malicious mischief must either expressly charge malice against the owner or fully otherwise describe the offense. For this defect in the indictment

PER CURIAM. Judgment arrested.

Cited: S. v. Jacobs, 47 N.C. 56; S. v. Newby, 64 N.C. 25; S. v.Manuel, 72 N.C. 202; S. v. Hill, 79 N.C. 658; S. v. Sheets, 89 N.C. 548;S. v. Martin, 141 N.C. 838.

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