majority"> Boyce, J.

charging the jury:

Gentlemen of the jury: — Sydney Wright, the accused, is charged in this indictment with an offense, commonly known as malicious mischief, which by the courts of this state, as well as by the weight of American authority, is held, in the absence of statute, to be a common-law offense. By a statute in this state, *395all offenses, indictable at common law and not specially provided for by the statute, are deemed misdemeanors.

It is claimed and not controverted that the prosecutrix was, at the time of the alleged commission of the offense charged, tenant and occupant of a certain house in the town of Dover, this county.

The state has introduced evidence to show that the prosecuting witness, with others, was on the night of January fourth last, at about eleven o’clock, in the peaceable and lawful possession of the said house, when the accused, without legal excuse or justification, threw bricks at the house and broke out twenty-three windowpanes

The accused claims that he and his wife occupied one of the rooms in said house as undertenant, and that upon going to the house, on the night alleged, he found the doors fastened, and failing to obtain admission, he went around to the window in the room which he occupied, when a shot was fired from the window, whereupon he admits that he did throw two bricks against the wall of the house, but he denies that he willfully and maliciously broke any windowpanes, or that he broke any at all

You have heard the evidence and we shall not attempt a detailed statement of it. You are the sole judges of the weight and value of the testimony adduced before you. Where, as in this case, the testimony is conflicting, you should reconcile it if you can; if you cannot, you should accept as true so much of-it as you deem worthy of credit, and reject that, if any, which you deem unworthy of credit, keeping in mind the interest or bias of the witnesses, if any, their means of information and opportunity of knowing the facts of which they have testified, their demeanor on the stand, their apparent candor or frankness or lack of it, and to what extent, if any, they are corroborated or contradicted by other testimony.

This court has defined the offense charged against the accused to be "any malicious or mischievous injury, either to the right of another, or to those of the public generally.” The offense embraces, all malicious physical injuries to the rights of another which impair utility or materially diminish its value. Malice is an essential element of the offense, and it must be proved to the *396satisfaction of the jury as any other material fact necessary to be proved.

As to what constitutes the element of malice in malicious mischief, this court has never restricted it to ill will or revenge against the owner or possessor of the property alleged to have been injured or destroyed. On the contrary it has been? held that willful or wanton injury to or destruction of property, committed under such circumstances as to indicate a malignant spirit or mischief is sufficient to constitute malicious mischief. State v. McAllister, 7 Penn. 301, 76 Atl. 226.

Malice may be either express or implied. Express malice may be shown by the declarations or confessions of the accused in connection with the unlawful act. Malice may be implied or inferred from doing a willful or wanton unlawful act.

It is a rule of law that when the act complained of in a prosecution for malicious mischief is done under a bona fide claim of right, such a claim repels the presumption of malice, and when well founded, it is a good defense. But if the accused does more damage than is reasonably necessary for the assertion or protection of such a claim of right, he is left without defense the same as if he had committed the act unlawfully, willfully and wantonly without any claim of right. 19 Amer. & Eng. Ency. of Law (2d Ed.) 644.

• If you find from the evidence that the accused did throw bricks and break out the windowpanes as complained against him, then, in determining whether the injury was done willfully and maliciously, or whether it was done under such circumstances as to negative malice, you should consider all the facts and circumstances disclosed to you by the evidence.

If after considering all the evidence, you should entertain a reasonable doubt as to the guilt of the accused, such a doubt would inure to the benefit of the accused, and it would entitle him to an acquittal.

A reasonable doubt means a substantial, well-founded doubt, arising from a candid and impartial consideration of all the evidence, or want of evidence.

If you are satisfied from the evidence beyond a reasonable *397doubt, such as we have defined, that the accused did willfully and maliciously break the windowpanes, as alleged, your verdict should be guilty; otherwise your verdict should be not guilty.

Verdict, guilty with recommendation to mercy.

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