State v. Jackson, 34 N.C. 329, 12 Ired. 329 (1851)

Aug. 1851 · Supreme Court of North Carolina

34 N.C. 329, 12 Ired. 329

THE STATE vs. RUEL JACKSON.

An indictment for malicious mischief must either expressly charge malice against the owner, or fully otherwise describe the offence.

Setting forth in the indictment that the act was done “feloniously, wilfully and maliciously,” without averring that it was done “mischievously,” or with malice against the owner, is not sufficient.

The cases of the Slate v Robinson, 3 Dev. & Bat. 130 ; State v Cockman) 1 Ire. 381; State v Simpson, 2 Hawk. 460, and State v Scott, 2 Dev. & Bat. 35, cited and approved.

Appeal from the Superior Court of Law of Surry county, Spring Term, 1851, his Honor Judge Battle presiding.

The defendant was indicted for malicious mischief, in burning, and thereby destroying, two ploughs and gears, upon the following indictment:

State of North Carolina, ) Superior Court of Law, Surry County. ) 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, with force and arms, in the county aforesaid, into a certain field, there situate, then and thero did enter said fiel$, then being in the possession of one Winston Fulton, and the said Ruel Jackson, in the field aforesaid, two ploughs and two sets of horse-gears, the property of the said Winston Fulton, then and there being, then and there feloniously, wilfully 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 the State.

Boyden, for the defendant

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. 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 not particularly brought to the notice of the Judge. An indictment is a compound of law and fact, and must so set out the offence, 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 essence of the crime charged against the defendant, that it was perpetrated from ill-will against the oioner of the property destroyed. It is necessary, therefore, that the indictment should either directly charge this malice towards the owner, ox so describe the offence, that the Court may see that the charge is sufficiently explicit to support itself. 1 Ch. Cr. L. 172—State v Cockman, 1 Ind. 381. The indictment in this case does not charge the crime to have been perpetrated from malice against the owner. And in the cases of the State v Simpson, 2 Hawk. 460, and State v Scott, 2 Dev. & Bat. 35, the Court decide, that it was not necessaiy so to lay the offence, 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,” &c.; in Simpson’s, “unlawfully, wickedly, maliciously and mischiev-ovsly,” &c. 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 offence.

For this defect in the indictment, the judgment should be arrested: which will be certified to the Superior Court of Surry county.

Pse Cukiam. Ordered accordingly.