Duncan v. State

• Decision Date: 20 November 1968
• Docket Number: No. 83,83
• Citation: 248 A.2d 176,5 Md.App. 440
• Parties: Donald Wayne DUNCAN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 440

5 Md.App. 440

248 A.2d 176

Donald Wayne DUNCAN v. STATE of Maryland.

No. 83.

Court of Special Appeals of Maryland.

Nov. 20, 1968.

Livingston W. Yourtee, Pasadena, for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Julian B. Stevens and Ronald M. Naditch, State's Atty. and Asst. State's Atty. for Anne Arundel County respectively, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

The appellant and a co-defendant ¹ were jointly indicted for robbery and jointly tried in the Circuit Court for Anne Arundel County by the court without a jury. The appellant was found guilty of robbery (1st count) and malicious mischief ² proscribed by Md.Code, (1967 Repl. Vol.), Art. 27, § 111 (7th count) and a general sentence of imprisonment for a term of 7 years was imposed. On appeal from the judgment the appellant first contends that the evidence was not sufficient to sustain the conviction of malicious mischief.

The 7th count of the indictment alleged that the appellant 'wilfully and maliciously did destroy, injure, deface and molest the personal property of Otto Von Schrader.' The evidence showed that the injury was to the car of Von Schrader, stolen by the appellant while he was robbing Von Schrader. ³ The circumstances of the injury, as observed by both the victim and a police officer, are not disputed. After robbing Von Schrader of $8 in currency and the keys to his car, the appellant, accompanied by the co-defendant, drove the car from a parking lot. He backed the car out of its parking space 'at a high rate of speed, stopped short, went forward, struck a light car that was parked next to it' and drove away. ⁴ The headlight on Von Schrader's car was broken. The car was pursued by the police who stopped it several blocks away and apprehended the appellant and the co-defendant. The appellant was behind the wheel.

Md.Code, supra, Art. 27, § 111 provides: 'Any person who shall wilfully and maliciously destroy, injury, deface or molest any real or personal property of another shall be deemed guilty of a misdemeanor * * *.' ⁵ The elements of the offense under the statute are:

(1) as to the property: it may be real or personal property but must be that of another;

(2) as to the mischief: the property must be destroyed, injured, defaced or molested;

(3) as to the mens-rea: the mischief must be wilful and malicious.

In the instant case the evidence showed that the appellant was the criminal agent and, as to the corpus delicti, it showed that the property was the personal property of another and that the property was injured, defaced and molested. The only question is as to the mens-rea, whether the damage was by a wilful and milicious act.

Blackstone said that malicious mischief 'is such as is done, not animo furandi, or with an intent of gaining by another's loss * * * but either out of a spirit of wanton cruelty, or black and diabolical revenge.' 4B1. Comm. 243. Some cases, following this view, hold that malice as to this offense has a different meaning from that ordinarily used in the law of crimes and is used in the sense of actual ill-will or resentment toward the owner or possessor of the property. 2 Wharton's Criminal Law, (1957) § 657, p. 456; Clark & Marshall, Law of Crimes (6th Ed.), § 12.43, p. 869. Perkins, Criminal Law (1957) ch. 4, § 7C, p. 285 finds this 'quite illogical', resulting 'from a faulty analysis of the legal meaning of the word 'malice." He states, p. 285:

"Malice' has had its chief exposition in the homicide cases, and all the confusion at this point could have been avoided if due attention had been given to the results there reached. A homicide may be malicious without a specific intent to kill if it results from an act done in wanton and wilful disregard of a plain and strong likelihood that loss of life will result. On the other hand, an intentional homicide without justification or excuse is not malicious if committed under circumstances of recognized mitigation. And this application of 'malice' to the homicide cases is in no sense an unusual treatment of the word as it is used in the law. In other words, the ordinary legal concept of malice requires two ingredients, one positive and the other negative. On the positive side 'malice' requires an intent to cause the very harm that results or some harm of the same general nature, or an act done in wanton and wilful disregard of the plain and strong likelihood that some such harm will result. And on the negative side it requires the absence of any circumstance of justification, excuse or recognized mitigation.'

We think that Maryland tends toward the view expressed in Perkins. In Rosenberg v. State, 164 Md. 473, 476, 165 A. 306, 307, the Court, construing a statute then in effect providing that any person who shall 'wilfully and maliciously * * * destroy * * * any fencing, * * * shall on conviction thereof, be adjudged guilty of a misdemeanor * * *', said the term 'wilfully', for the purposes of such an accusation, 'is used to characterize an act done with deliberate intention for which there is no reasonable excuse', and the word 'maliciously' is 'descriptive of a wrongful act committed deliberately and without legal justification.' This definition of malice is in substance the same as that used in connection with murder-'the intentional doing of a wrongful act to another without legal excuse or justification.' Chisley v. State, 202 Md. 87, 105, 95 A.2d 577, 585. And we see no practical distinction between 'wilful' and 'malicious' as used in the statute proscribing malicious mischief, as malice 'includes any wrongful act done wilfully or purposely.' Chisley v. State, supra, p. 105, 95 A.2d p. 585, citing Rosenberg v. State, supra. We think that the special element of mens-rea in malicious mischief, designated in the statute as 'wilfully and maliciously', requires either a specific intent to cause the destruction, injury, defacement or molestation of the property of another, or an act done in wanton and wilful disregard of the plain and strong likelihood of such harm, without any justification, excuse, or substantial mitigation. Stated in other words: the mens-rea requirement of malicious mischief is a property-endangering state of mind, without justification, excuse, or mitigation Perkins, supra, p. 290.

The few cases in this jurisdiction on point, support this view. In Rosenberg v. State, supra, the Court found that in removing a post standing on another's property, Rosenberg was asserting a property right which the owners of the ground on which the post was planted were contesting. Thus the mischief was done with justification or excuse or mitigation and did not constitute the criminal offense proscribed by statute. In Gibson v. State, 238 Md. 414, 209 A.2d 242, the parties involved were feuding over a roadway and Mr. and Mrs. Gibson twice cut a fence situated on property belonging to Strauss. The fence in no way impaired the use of the roadway nor did it touch or intrude on the Gibson property. Thus there was no justification or excuse or mitigation for the mischief and it did constitute the offense. But while these cases related to the mens-rea of the offense they are of little help in a determination of the instant case. In both Rosenberg and Gibson the decisions turned on justification, excuse or mitigation; there was no question but that the acts were done wilfully and purposely. On the other hand, in the instant case we have no difficulty in finding that there was no justification, excuse or mitigation, in the sense required, in the act causing the damage to the car, and the question is whether it was wilful and purposeful. The appellant argues, in effect, that the damage was caused accidentally and even if by his negligence 'regardless of whether he was stealing the car, borrowing it or using it without authority', this is not sufficient to show the required mens-rea.

We do not think that the evidence before the lower court was sufficient to show that the appellant had a specific intent to damage the car; rather it appears that he took the car as a means of escape. But it is established that malice may be inferred from the circumstances. Chisley v. State, supra, 202 Md. p. 105, 95 A.2d 577; Wharton, supra, § 657, p. 458. The lower court said, 'I think that by inference * * * malice was shown here.' As we have found that there was no justification, excuse, or mitigation in the act causing the damage to the car, the question is, therefore, whether such act was done in wanton and wilful disregard of the plain and strong likelihood of such damage. The cases precisely on point in other jurisdictions are few in number. Two are illustrative. In State v. Robinson, 20 N.C. 129, 130 (1838) the defendants found a wagon standing in the street and ran it through the street and down a hill, whereby it was damaged. The court found that this was not malicious mischief. But it based its decision on the rule that malicious mischief to be indictable 'consists in the wilful destruction of some article of personal property, from actual ill-will or resentment towards its owner or possessor,' p. 131. We have rejected this rule. In State v. Davis, 88 S.C. 229, 70 S.E. 811 (1911) the lower court charged the jury as to malicious mischief that 'if the proof in this case satisfies you beyond a reasonable doubt that these defendants, on the occasion referred to, drove that automobile (taken without the consent of the owner) down that public road in such a furious manner, so regardless of the rights of the owner of it as not to know and not to care whether they smashed it up, and while so recklessly driving it was wrecked and broken up, the law says they...