#### THE STATE v. CHARLES NEWBY.

.A special verdict in an indictment for Malicious mischief, which omits to find that the act was done with malice towards the owner of the property injured, is equivalent to an acquittal.

(State v. Jackson, 12 Ire., 329, State v. Latham, 13 He., 33, cited and approved.)

Malicious Misohiee, tried before Pool, J., at Spring Term 1869, of Perquimans Court.

A special verdict found that the ox in question, was killed by the defendant in December 1866, in a field belonging to the defendant, within which no crop was growing; that the cattle of the plaintiff were frequently in such field, and plaintiff had been previously notified by the defendant of .that fact; that the fence was not a lawful one ; that the de*24fendant fired upon the ox from the door of his own house,, and as soon as he saw it; and that after killing it he sent word to its owner, the prosecutor.

In regard to the point of malice, the solicitor submitted to the Court that, as the killing was in the winter, when there was no crop upon the ground, the law implied malice.

His Honor, however, directed a verdict of Not guilty to-, be entered, and the Solicitor appealed.

Attorney-general, for the State.

Absence of a reasonable influential and apparent motive, at the time, implies malice. The principle governing cases of homicide without legal justification, seems applicable. See State v. Landreth, 2nd Law Eepos. 446 ; State v. Robinson, 3 D. & B., 130.

F. II. Busbee, contra.

The ruling below is correct. 4 Bl. Coin. 343 ; State v. Robinson, 3 D & B., 130 ,- Wheaton’s Cr. Law, § 2011; State v. Latham, 13 Ire. 33 ; Kirlvpatrick v. The People, 5 Denio, 277 ; State v. Jackson, 12 Ire., 329.

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-*25the 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.