State v. . Newby

64 N.C. 23

Opinion

Eeade, J.

In the spoliation or destruction of property, malice towards the owner, must be the inducement, in order to constitute the crime of malicious mischief at common law.

This was not controverted by the Attorney-general, but he insisted that the fact of killing the ox being found, malice must be inferred, just as in homicide. The difference is that homicide is a crime per se, and excuse or justification must, come from the defence, or appear in the cause ; but to kill an ox is not so; and therefore malice toward the owner-must be found. It was not found in this case, and therefore- the defendant was entitled to an acquittal. State v. Jackson, 12 Ire., 329; State v. Latham, 13 Ire., 33.

There is no error. Let this he certified.

Per Curiam. No error.