State v. Leslie
| Decision Date | 07 April 1908 |
| Citation | 115 N.W. 897,138 Iowa 104 |
| Parties | THE STATE OF IOWA, Appellee, v. JOSEPH LESLIE, Appellant |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.-- HON. O. D. WHEELER Judge.
INDICTMENT for willfully and maliciously burning a pile of railroad ties, the property of another. The defendant was convicted and appeals.-- Reversed.
Reversed.
Milton Anderson and Turner & Cullison, for appellant.
H. W Byers, Attorney General, and Chas. W. Lyon, Assistant Attorney General, for the State.
I. The first point made in appellant's argument is grounded upon the theory that the indictment fails to allege that the act charged against the defendant was done maliciously. An amended abstract has been filed by the State, showing that counsel has misapprehended the record in this respect, and that the indictment does in fact charge malice, and is therefore not open to the criticism made upon it in the appellant's brief.
II. The point is next made that the court gave to the jury an erroneous instruction as to the definition and nature of the malice necessary to be proved in order to justify a conviction. The court told the jury that to convict the defendant they must find, among other things, "that such act upon the part of the defendant in setting fire to the pile of ties and burning the same was willful and malicious." In another paragraph the court charged as follows: "(11) If you find from the evidence, however, that the defendant did set fire to and burn said pile of ties, under the rules above given you, and that in so doing he intended to destroy the same, and that he did such act deliberately, without authority from his superior officer or said railway company to do so, and without any justification or excuse therefor, then you will be justified in finding that such act upon his part was willful and malicious." We think the instruction cannot be approved. The definition of the word "malicious," as it is used in criminal law, varies somewhat with the particular offense to which it is applied. With but few exceptions, most of which grow out of the particular statute being construed, malicious mischief, which is made punishable as a crime, is not mischief or injury done to the property through mere wantonness, or a mere intent to injure the property, but is mischief or injury inflicted with the malicious intent to injure some person, ordinarily the owner of the property. It need not be shown that the offender knew who the owner was; but it will be sufficient if it be established that he was bent on mischief against the owner, whoever he might be proven to be. But the malice must have some object other than the thing injured. State v. Phipps, 95 Iowa 491, 64 N.W. 411; State v. Linde, 54 Iowa 139, 6 N.W. 168; State v. Williamson, 68 Iowa 351, 27 N.W. 259; State v. Lightfoot, 107 Iowa 344, 78 N.W. 41; Northcot v. State, 43 Ala. 330; Hobson v. State, 44 Ala. 380; Duncan v. State, 49 Miss. 331; State v. Hill, 79 N.C. 656; Goforth v. State, 27 Tenn. 37, 8 Hum. 37; State v. Wilcox, 11 Tenn. 277, 3 Yer. 278, (24 Am. Dec. 569); State v. Newby, 64 N.C. 23; Commonwealth v. Williams, 110 Mass. 401; Commonwealth v. Walden, 3 Cush. 558; United States v. Gideon, 1 Minn. 292 (Gil. 226); Stone v. State, 50 Tenn. 457, 3 Heisk. 457; State v. Johnson, 7 Wyo. 512 (54 P. 502); State v. Foote, 71 Conn. 737 (43 A. 488); Dawson v. State, 52 Ind. 478.
It is not to be denied that, in many cases where malice is a matter of material inquiry, it has been said that a wrongful act intentionally or wantonly done, without justification or excuse, is malicious within the meaning of the law; and this, we think, is the substantial effect of the charge given by the trial court. Without denying that there are many cases involving malice where such an instruction would be correct, it remains true that by the vastly greater weight of authority in the crime of malicious mischief or injury to property the idea of malice toward the owner or some other person is an essential element of the crime, and that an instruction defining malice in its more general sense is insufficient. ...
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