552 CRUELTY AND MALICIOUS MISCHIEF. 



the mischief is just as great where manual power is used as 

 if it were inflicted by an instrument."!^® 



127. Proof of Malice; Indictment — The essence of the 

 offense of malicious mischief is malice toward the owner or 

 custodian of the property on the part of the perpetrator of 

 the act.i^' This was held in cases arising under the Black 

 Act,! 5* concerning which the following comments were made 

 in an Ohio case: "The key to these decisions is furnished by 

 Mr. East, who, in speaking of the preamble . and the two 

 acts named, by reference, says : 'The offense herein described 

 seems by the preamble to be pointed at such as commit it 

 from a motive of malice to the owner of the property:' 

 2 East P. C. 1063. And after quoting the statutes and 

 noticing the cases above cited and others on the same point, 

 he concludes the subject in these words : 'In all these cases 

 there was reasonable evidence appearing upon the face of the 

 transaction itself to impute the motive of the fact to resent- 

 ment against the particular animals; and not to any personal 

 malice against the owner. But it does not appear to have 

 been decided that it is necessary to give express evidence of 

 previous malice against the owner, in order to bring a case 

 within the act; but the fact being proved to be done wilfully, 

 which can only proceed from a brutal or malignant mind, 

 it seems a question solely for the consideration of the jury to 

 attribute the real motive to it, to which the transaction itself 

 will most probably furnish a clue:' East P. C. 1074. From 

 this it appears that, notwithstanding the severity of the pen- 



"' Reg. V. Bullock, L. R. i C. C. 115. 



™ State V. Newby, 64 N. C. 23; State v. Latham, 13 Ired. L. (N. C.) 33; 

 Northcot V. State, 43 Ala. 330; Hobson v. State, 44 id 380; State v. 

 Enslow, 10 la. 155; State v. Lightfoot (la.), 78 N. W. Rep. 41; U. S. 

 V. Gideon, i Minn. 292; State v. Wilcox, 3 Yerg. (Tenn.) 278; Stone v. 

 State, 3 Heisk. (Tenn.) 457. 



And malice toward the owner's son was held not to be sufficient in 

 N'jtthcot V. State, 43 Ala. 330. 



"* Pearce's Case, Leach 527; Shepherd's Case, Ibid. 539. 



