73 Vt. 70 | Vt. | 1901
The action is upon V. S., s. 5008, and is for the recovery of damages caused by the removal of a stonewall which enclosed a burial ground. V. S., s. 5007, provides, among other things, that, if a person wilfully and maliciously injures any fence or other erections in or about a burial ground, he shall be imprisoned in the state prison not more than five years, or fined not more than two hundred dollars and
In the absence of a finding that the act was maliciously done, the action cannot be maintained. In order to maintain an action upon the statute, 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. Commonwealth v. Williams, 110 Mass. 402. It does not follow from the fact that an act is wilfully done that it is maliciously done. One may do an act wilfully and be free from malice, but he cannot do an act maliciously without doing it wilfully. State v. Robins, 66 Me. 324. If one does an act intentionally and without authority, it may be found that the act was wilfully done, but such a finding is not equivalent to a finding that the act is done maliciously, especially is this true
In Commonwealth v. Williams, the court, in construing a statute relating to wilful and malicious injury to a building, said: “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 word “maliciously” in the statute on which this action is founded, means more than the wilful doing of an act. An act to be maliciously done, within the meaning of the statute, must not only be wrong, but it must proceed from an evil design and a deliberate intention to do injury by marring, defacing or destroying the property enumerated in the statute, or consist in the wilful destruction or injury of such property, from actual ill-will or resentment to the owner, possessor or persons interested therein. In Commonwealth v. Welden, 3 Cush. 558, the respondent was indicted for wilfully and maliciously destroying the personal property of another, and it was held that the word “maliciously,” as used in the statute 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.
Judgment reversed, ayid judgment for the defendant to recover his costs.