It is, in truth, an
allegation like that of negligence, which asserts that the party
accused did not [63] come up to the legal standard of action
under the circumstances in which he found himself, and also that
there was no exceptional fact or excuse present which took the
case out of the general rule. It is an averment of a conclusion
of law which is permitted to abridge the facts (positive and
negative) on which it is founded.
When a statute punishes the "wilfully and maliciously" injuring
another's property, it is arguable, if not clear, that something
more is meant. The presumption that the second word was not added
without some meaning is seconded by the unreasonableness of
making every wilful trespass criminal. /1/ If this reasoning
prevails, maliciously is here used in its popular sense, and
imports that the motive for the defendant's act was a wish to
harm the owner of the property, or the thing itself, if living,
as an end, and for the sake of the harm. Malice in this sense has
nothing in common with the malice of murder.
Statutory law need not profess to be consistent with itself, or
with the theory adopted by judicial decisions. Hence there is
strictly no need to reconcile such a statute with the principles
which have been explained.
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