Odger's English Common Law

MALICIOUS INJURIES TO PROPERTY. 403
As a general rule," a man acts maliciously, when he wilfully
does that which he knows will injure another in person or
property." * But when a statute creates a new offence unknown
to the common law, it is always construed strictly. 2
The object of these sections is to prevent injury to property;
and the word "maliciously" is therefore limited here to a
malicious desire to injure property. An intention to injure
a person will not support the indictment. 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.
Hence if A. flings a stone at B., misses B., but hits and breaks a street
lamp, he cannot be found guilty under either of these sections, because he
intended to wound a man and has only damaged the lamp by accident. 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. 8
This rule is, however, subject to one modification. If A. is in a room
looking through a closed window and B., who is in the street, flings a stone
through the window with the intention of wounding A., B. is guilty of
maliciously injuring property ; for he could not wound A. without breaking
the intervening glass. So, if A. was in the street leaning against a plate-
glass window and B. flung a stone at A.'s head, missed it and broke the
window, he would in all probability be convicted of malicious injury to pro-
perty, for the jury would deem him wantonly reckbss; he ought to have
known that his act would almost certainly break the window.
A milk-carrier who added water to his employer's milk, not with the
intention of injuring him, but in order to make a profit for himself by
increasing the bulk of the milk, was held guilty of the offence of damaging
his employer's property. 4
On the trial of an indictment for malicious damage to property under
section 51, where the defence set up is a claim of right, the proper direction
to the jury is: Did the defendant do what he did in the exercise of
a supposed right ? adding that if, on the facts before them, the jury come
to the conclusion that the defendant did more damage than he could
reasonably suppose to be necessary for the assertion or protection of that
right, then the jury ought to find him guilty.
A limited company obtained a lease of certain land at Newquay,
which had been until about sixty years previously a common, and
1 Per Blackburn, J., in B. v. Ward (1872), L. E. 1 C. C. R. at p. 360.
* See ante, p. 75.
« R, v. Pembliton (1874), L. R. 2 C. C. R. 119 ; and pee B. v. Child (1871), L. ».
1 C C R 307
>' Roper v. Knott, [1898] 1 Q. B. 868.
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