State v. Minor
| Decision Date | 10 September 1908 |
| Citation | 117 N.W. 528,17 N.D. 454 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Williams County; Goss, J.
Moses Minor was convicted of malicious mischief, and he appeals.
Reversed.
Judgment reversed, and a new trial ordered.
Palda & Burke (Engerud, Holt & Frame, of counsel), for appellant.
Acts done in good faith are not malicious in a legal sense. State v. Flynn, 28 Iowa 26; Sattler v People, 59 Ill. 68; State v. Newkirk, 49 Mo 84; State v. Hause, 71 N.C. 518; Goforth v State, 8 Humph., 37; Palmer v. State, 45 Ind. 388; The King v. Langford, 1st C. & M., 602.
T. F. McCue, Attorney General; R. N. Stevens, Assistant Attorney General, and Van R. Brown, State's Attorney, for respondent.
An unlawful act intentionally done, without cause, is malice. State v. Grassler, 74 Mo.App. 313; Commonwealth v. York, 50 Mass. 93; State v. Foote, 71 Conn. 737.
The defendant was convicted in the district court of Williams county of the crime of malicious mischief, and from the judgment imposing a fine against him of $ 25, and costs taxed at $ 50, he prosecutes this appeal.
The information, omitting the formal parts, is as follows: "On the 7th day of September, 1905, at the county of Williams, in the state of North Dakota, one Moses Minor, late of the county of Williams and state aforesaid, did commit the crime of malicious mischief, committed in the manner following, to-wit: That at the said time and place the above-named defendant, willfully, wrongfully, unlawfully, and maliciously did injure, deface, destroy, and remove a certain building then and there situate upon lot 16 of block 1 of the plat of Wheelock, N.D., and did then and there willfully and wrongfully, unlawfully and maliciously, by removing from shelter in said building, and otherwise, and then and there injure, deface, and destroy certain furniture, fixtures, and machinery, all of said property then and there injured, defaced, destroyed, and removed as aforesaid being then and there the personal property of one A. E. Hughes, and part of the printing plant owned by A. E. Hughes, at Wheelock, N.D., said injury to said personal property being then and there done with malicious intent had in him, said Moses Minor, to deprive said A. E. Hughes of the benefit thereof." The evidence disclosed that defendant is and was the owner of the lot upon which said building was situate; he having purchased the same in December, 1904. Some time prior to such purchase the complaining witness Hughes moved the building thereon, under a verbal license of the then owner. It was and is defendant's contention that when he purchased said lot he had no notice that Hughes claimed to be the owner of the building, and he believed that by his purchase he acquired title to the building, as well as to the lot upon which it rested. A dispute naturally arose between these parties regarding the ownership of the building. Defendant caused notice to be served upon Hughes to vacate the premises, and, the latter not complying with such notice, defendant proceeded to and did enter said building, and removed certain personal property therein contained and belonging to Hughes from the building, leaving the same upon the public street, and he then proceeded to and did remove said building to another lot owned by him.
Appellant's assignments of error are grouped together, and discussed in his brief under the general proposition that the evidence does not sustain the charge embraced in the information, his chief contention being that the evidence fails to show any malice on the part of the defendant. We are entirely clear that such contention is sound. The defendant's conduct in so far as the evidence discloses, was entirely consistent with the utmost good faith on his part. He did nothing from which it can even be inferred that he intended to do wrong, or to do anything except what he be...
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