Nash, J. The defendant is indicted for malicious mischief, in burning a couple of ploughs and gears belonging to the prosecutor. The crime consists in the wilful destruction of personal property, from actual ill-will or resentment towards its owner or possessor. State v Robinson, 3 Dev. & Bat. 130—4 Bl. Com. 254.
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STATEv. JACKSON,34 N.C. 329(1851)
Supreme Court of North Carolina
1. An indictment for malicious mischief must either expressly charge malice against the owner or fully otherwise describe the offense.
2. Setting forth in the indictment that the act was done "feloniously, willfully, and maliciously." without averring that it was done "mischievously," or with malice against the owner, is not sufficient.
APPEAL fromBattle, J., at SURRY Spring Term, 1951.
The defendant was indicted for malicious mischief in burning, and thereby destroying, two plows and gears, upon the following indictment:
STATE OF NORTH CAROLINA — Surry County. Superior Court of Law, Fall Term, 1850.
The jurors for the State, upon their oath, present: That Ruel Jackson, late of the county of Surry, laborer, on the first day of April, in the year of our Lord one thousand eight hundred and fifty, (330) with force and arms, in the county aforesaid, into a certain field there situate, then and there did enter said field, then being in the possession of one Winston Fulton, and the said Ruel Jackson, in the field aforesaid, two plows and two sets of horse gears, the property of the said Winston Fulton, then and there being, then and there feloniously, willfully, and maliciously did set fire to and burn, against the form of the statute in such case made and provided, and against the peace and dignity of the State.
Upon this indictment the defendant was convicted, and appealed from the judgment on the conviction. The question presented by the case will be found in the opinion of the Court.
Attorney-General for State.Boyden for defendant.
NASH, J.
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 wasPage 228not 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 evidencedehors, 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 theowner 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. InS. v. Simpson,9 N.C. 460, andS. 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 inScott's casewas, "unlawfully, wickedly, maliciously, andmischievously,"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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