| N.D. | Sep 10, 1908
The defendant was convicted in the district court of Williams county of the crime of malicious mischief, and from the judgment imposing a fine against him of $25, and costs taxed at $50, he prosecutes this appeal.
The information, omitting the formal parts, is as follows: “On the 7th day of September, 1905, at the county of Williams, in the state of North Dakota, one Moses Minor, late of the county of Williams and state aforesaid, did commit the crime of malicious mischief, committed in the manner following, to-wit: That at the said time and place the above-named defendant, willfully, wrongfully, unlawfully, and maliciously did injure, deface, destroy, and remove a certain building then and there situate upon lot 16 of block 1 of the plat of Wheelock, N. D., and did then and there willfully and wrongfully, unlawfully and maliciously, by removing from shelter in said building, and otherwise, and then and there injure, deface, and destroy certain furniture, fixtures, and machinery, all of said property then and there injured, defaced, destroyed, and removed as aforesaid being then and there the personal property of one A. E. Hughes, and part of the printing plant owned by A. E. Hughes, at Wheelock, N. D., said injury to said personal property being then and there done with malicious intent had in him, said Moses Minor, to deprive said A. E. Hughes of the benefit thereof.” The evidence disclosed that defendant is and was the owner of the lot upon which
Appellant’s assignments of error are grouped together, and, discussed in his brief under the general proposition that the evidence does not sustain the charge embraced in the information, his chief contention being that the evidence fails to show any malice on the part of the defendant. We are entirely clear that such contention is sound. The defendant’s conduct, in so far as the evidence discloses, was entirely consistent with .the utmost good faith on his part. He did nothing from which it can even be inferred that he intended to do wrong, or to do anything except what he believed he had a legal right to do. He acted openly and not secretly, and there is not a scintilla of evidence showing or tending to show that his purpose was to vex or annoy the prosecuting witness, or to injure him in his property rights. Section 9315, Rev. Codes 1905, defining the offense of malicious mischief, provides: “Every person who maliciously injures, defaces or destroys any real or personal property not his own * * * is guilty of a misdemeanor. * * * ” Under this statute malice is an essential ingredient of the offense, and we think that the word “maliciously” has a restricted meaning from that given to it generally in criminal statutes, and imports a wish or desire to vex, annoy, and injure the owner or possessor of the property. The authorities are somewhat divided upon the proper construction of such statutes, but the prevailing rule, and the one which meets with our approval, is set forth in 25 Cy-c. 1676, as follows: “Malice is an essential ingredient of an offense of malicious mischief both at common law and under almost all of the statutes de
Applying the above rule of construction to the evidence in this case, we are required to hold that the state wholly failed to establish the charge contained in the information, and we therefore conclude that the judgment appealed from must be reversed, and a new trial ordered.