Odger's English Common Law

124 THE ELEMENTS OF A CRIME.
knew or ought to have known that the act, which he intended
to do, would injure any one. " A man acts maliciously when
he wilfully does that which he knows will injure another ih
person or property." 1
Where a soldier, in striking at a man with a belt, accidentally wounded a
woman who was standing beside him, it was held that he was guilty of
unlawfully and maliciously wounding her. The facts that he had no inten-
tion whatever of striking her and had no reasonable cause to expect that
she would be struck were held to be immaterial. 2 If a man fired a shotgun
at another with intent only to frighten him and aimed wide on purpose,
still if by any chance that other was struck by any of the shot, this would
be an unlawful and malicious wounding. 3 So a stupid practical joke may
be malicious in this wider sense of the term. 4
But under the Malicious Injuries to Property Act, 1861, 5
the word "maliciously " has a much narrower meaning. Whenever
a statute creates a new offence unknown to the common
law, it is always construed strictly. The object of this Act
is to prevent injury to property, and the meaning of the word
" maliciously " is therefore here restricted to a malicious
desire to injure property. An intention to injure a person
will not support an indictment under section 51. 6 Nor
will it be sufficient to show that the accused intended to do an
unlawful act, and that in attempting to do it he has in fact
injured property.
If A. flings a stone at B., misses B., but hits and breaks a street lamp,
he cannot be found guilty of any offence under the Malicious Injuries
5
to Property Act, 186 1, because he intended to wound a man and has only
damaged the lamp by accident. 7
If, however, he flings a stone at the
lamp meaning to break it, misses the lamp and smashes a plate-glass
window instead, then he can be convicted under the appropriate section,
for he intended to injure property, though not the particular piece of
property which he has in fact injured.
In cases where malice is an essential element of the crime,
its existence must be proved affirmatively by the prosecution.
In such cases (though in no others) it will be a defence to
1 Per Blackburn, J., in R. v. Ward (1872), L. R. 1 C. 0. R. at p. 360.
2 B. v. Latimer (1886), 17 Q. B. D. 859.
3 R. v. Ward (1872), L. R. 1 C. C. R. 3E6.
* R. v. Martin (1881), 8 Q. B. D. 6£.
6 24 & 25 Vict. c. 97.
6 See post, pp. 402, 403.
' R. v. Pembliton (1874), L. R. 2 C. C. K. 119 ; and see R. v. Cliild (1871), L. R. 1
C. C. R. 307 ;
R. v. Favlkner (1877), 13 Cox, 550.