State v. Glovsky

Philbrook, J.

The respondent was indicted under the provisions of R. S., Chap. 121, for wilfully and maliciously setting fire to a building belonging to one Simon Glovsky, otherwise known as Samuel Glovsky, with intent to burn said building, and said building was thereby burned. Upon arraignment, he filed a general demurrer, reserving the right, with the consent of the presiding Justice, to plead over, in case said demurrer should be overruled. The presiding Justice overruled the demurrer and the case is before us upon exceptions to that ruling.

His counsel concedes that, broadly speaking, an indictment for a statutory crime is sufficient where it charges the offense in the words of the statute, but urges that this is true only in those cases where, in the statute itself, there is a sufficient description of the offense intended to be created by the Legislature. He does not contend that this indictment fails to charge the offense in the words of the statute, but claims that it is fatally defective in that it fails to allege that the act complained of was done without the consent of the owner of the building.

The statute does not say that the act must be done without the consent of the owner and we do not think such an allegation is necessary in the indictment. For the statute does say that the act must be done maliciously. It is an elementary principle that an act is, in contemplation of law, done maliciously where it is wrongful and is done intentionally. Davis v. Pacific Tel. & Tel. Co., 57 Pac., 764. The court, in United Stales v. Gunther, 38 N. W., 79, said that “Maliciously” as used in criminal statutes, means nothing more than that the act should be done voluntarily, unlawfully, and without excuse, or justification. This indictment charges that the act was done maliciously, which is equivalent, therefore, to saying that it was done without excuse or justification. The demurrer admits this. If done without excuse or justification it follows that it was done without consent. Why, then, should the indictment necessarily charge that the act was done without the consent of the owner. Ueason, and the plain meaning of language, negative such an idea.

Where, as in R. S., Chap. 129, See. 25, relating to malicious injury to buildings, non-consent of the owner is made a material part of the offense, then an allegation of such non-consent would be necessary. Not so under the statute defining the offense with which this respondent is charged.

Exceptions overruled.