McDaris v. State ( 1973 )

BRETT, Judge

(specially concurring) :

I agree that this conviction should be affirmed, but I do not agree that the cases of Colbert v. State, supra, and Moran v. State, supra, should be overturned. In each of those cases the dispute arose out of a quarrel or disagreement in the nature of trespass. The destruction of property involved in those cases was not considered to have been done with malice toward the owners of the property, but instead to abate a nuisance. Consequently, I do not agree that they should be overturned.

With reference to the inference of malice toward the owner of property, when tires are slashed, etc., as mentioned in the decision, that inference may be reasonable even though the owner of the property is not known. That inference may be reached in the same manner intent would be inferred, from the facts and circumstances presented in cases wherein the element of intent is required.