
    
      The State vs. George Doig.
    
    In an indictment under the 14th sec. of the Act of 1823, for breaking a waste wier of the Rocky Mount Canal, it is not necessary to allege who was intended to be injured by the acts done by the defendant ; nor under whose care the canal was; nor that the forfeiture incurred by the acts done was above twelve dollars.
    The Act provides “if any person shall wilfully and maliciously break any waste wier, he shall, on conviction,” «fee. Held that any wilful breaking without just cause or excuse was within the meaning of the Act.
    What is meant in law by the term malice.
    A person may be indicted for injuring a waste wier of the Rocky Mount Canal, though the use of the canal had been abandoned.
    
      Before Wardlaw, J. at Chester, Fall Term, 1845.
    The defendant was indicted for maliciously breaking a waste wier of the Rocky Mount Canal, contrary to the Act of 1823, sec. 14, 6 Stat. 2171
    It appeared that he had taken six or seven large hewn stones from the waste wier, and used them in the erection of his mill.
    The use of the canal had been abandoned — the banks in many places had been cut, the timbers were rotten, all the iron which could be got at had been taken off by various persons in the neighborhood; and in the general system, of plunder which prevailed, -it seemed likely that all the hewn stones would be removed. The defendant was advised- by a neighbor to take such stones as he wanted, and if he should ever be called on, to pay for them; but he made no application to the Superintendent of Public Works, who occasionally visited the canal, and no person who took any thing there was ever known to pay for it.
    The presiding Judge held that any evil intent was malice; that the breaking, causa lucri, was not less contrary to the Act, than a breaking in wanton mischief; and that the matters alleged in the third ground for a new trial, if they honestly existed, might go in mitigation, but did not justify.
    
      The jury found the defendant guilty.
    The defendant appealed, and now moved the court in arrest of judgment, on the following grounds.
    1. Because the indictment does not allege who was intended to be injured by the acts done.
    2. Because the indictment does not allege under whose care the Rocky Mount Canal was, which was necessary; its by law it was under the care of commissioners for said canal — and the indictment should have charged that the acts done were intended to injure the said commissioners.
    3. Because the indictment does not allege that the forfeiture incurred was above twelve dollars — which was necessary to give the court jurisdiction.
    And failing in this, then he moved for a new trial, on the following grounds.
    1. Because the canal was not in use, and was, for all practical purposes, abandoned at the time of the alleged offence.
    2. Because the acts complained of were done without any malice, either moral or legal, but were done through ignorance or mistake, and without any intention to injure the State or any other person.
    3. Because his Honor should have charged the jury that if the defendant did the acts complained of, under the impression that the canal was virtually abandoned, or had taken the rock without any malice, and really then intended to pay the State for the same, then he was not guilty.
    4. Because the court charged the jury, that every unlawful act was, in law, regarded as being done with malice.
    
      A. W. Thomson, for the motion.
    
      Dawkins, Solicitor, contra.
   Curia, 'per Waedlaw, J.

The 14th sec. of the Act of 1823, under which the defendant is indicted, is as follows.

“If any person or persons shall wilfully and maliciously throw down, break or destroy, any lock, dam, bank, waste wier, culvert, wall, or any part thereof, belonging to any of the said canals, such person or persons so offending shall, for every such offence, on conviction thereof, pay all the damages arising from such breaking, throwing down or destroying, and shall also forfeit and pay a fine not exceeding one thousand dollars, and be imprisoned not exceeding twelve months, at the discretion ot the court before which such conviction shall take place.”

The indictment, pursuing the words of the statute, charges that the defendant unlawfully, wilfully and maliciously broke a waste wier of the Rocky Mount Canal, (describing the waste wier with precision,) contra for mam staiuti. No other allegation 'was necessary. What damages shall follow the conviction, and to whom they shall be paid, are matters which it must be left to the prosecuting officer to have properly adjudicated hereafter.

The 19th sec. of the Act, which directs that penalties under the Act, of $12 and less, shall be recovered before a justice of the peace, also provides that higher penalties shall be recovered by indictment in the Court of Sessions, and that offences for which imprisonment is made the punishment, shall be prosecuted by indictment in the Court of Sessions. These provisions would have rendered all notice of the inferior tribunal provided for other offences, Unnecessary in this indictment for an.-offence punishable by imprisonment and higher penalty than can be recovered before the inferior tribunal, even if in general it were not plain that it is not requisite to shew the jurisdiction of a court of general jurisdiction, by any averment that the matter is not within certain exempt cases, over which the inferior tribunal has exclusive jurisdiction.

To understand clearly the grounds taken in the motion for new trial, it is necessary to observe that the question of malice, as defined by the Judge, had been submitted to the jury, and then the counsel for the defendant desired the Judge to instruct the jury that if the use of the canal was abandoned, and the defendant took the stone for his own use, avowing honestly his willingness to pay for them when called on, the statute had not been violated. This the Judge declined to do, leaving it to the jury to say whether there was that evil intent which he considered malice,, and holding that, if there was, the matters alleged would go only in mitigation.

The main questions are. 1. What is the malice required by the statute — must it be a motive to injure merely, arising from hatred, wantonness or other evil disposition, or may it be a motive to obtain gain, to which the injury is only incidental ? 2. Were the circumstances such as to shew that the defendant could not have acted maliciously?

As is well known, the legal sense of malice differs from its sense in common speech. In law, malice is a term of art, importing wickedness and excluding a just cause or excuse. It is implied from an unlawful act wil-fully done, until the contrary be proved. The rule is the same in cases of homicide, and those of slander, malicious prosecution, arson, malicious mischief, and all other cases where malice is to be averred and proved. He who kills a stranger to obtain his goods acts maliciously; he who slanders, or without probable cause prosecutes to extort hush money, acts maliciously; he who burns a house to make gain, acts maliciously: and so, the malice implied from the wilful breaking of the waste weir is not rebutted by the defendant’s shewing that he did not act wantonly or spitefully, but was moved by a prospect of the advantage he would derive from obtaining at little cost materials for his mill.

But the defendant acted openly, avowed his intention to pay, and thought the canal forever abandoned.

These circumstances shew that he has not acted furtively, but the offence provided against is altogether distinct from theft, and does in effect include any wilful breaking without just cause or excuse. The canal was not in use, but the costly materials which remained after the use ceased, might have been applied by the State towards repairing the canal or other valuable purpose, and surely were not bona vacantia, to be appropriated by the first occupant. The value of an intention to pay may be measured by what it has produced in other instances, and its sincerity be questioned when no application on the subject was made to any public officer. But if such intention really existed and had been followed up, although it might have removed from the defendant’s act the odium which attaches to a plunderer upon the public, it eould not have been a just excuse, excluding the existence of the evil intent which here was found. How knew he that the mischief to the remaining works, done directly by the breaking and indirectly by the example, could be compensated to the satisfaction of the owner? Mischievous youths who in idle sport should break the lock of a canal, avowing at the time a determination to pay, and shortly afterwards manifesting the sincerity of their avowal by actual offer of compensation, would surely not be held to be free from guilt under the section we are considering, and upon conviction, besides the payment they had offered, might be punished by fine and imprisonment. The question then is whether the defendant is in better condition because he has avowed his willingness to pay but made no offer, and has acted from hope of gain and not in idle sport. Like the harmless inoffensive man, who burnt a house when he had no motive to induce him to commit the act (Rex vs. Farrington, R. and R. 209,) the defendant must be presumed to have understood and intended the consequences of his act, and be held to the terms of the statute which he wilfully violated.

Motion dismissed.

Richardson, O’Neall, Evans, Butler and Frost, JJ. concurred.  