majority">Wilde, J.

This is an indictment for malicious mischief wherein the defendant is charged with the wilful and mali cions shooting, and severely injuring, the mare of one Robert Noble, contrary to the Rev. Sts. c. 126, § 39. The evidence is not reported; but, whatever it was, the court, in the instruction to the jury, defined the word “maliciously,” in said section, to mean “the wilfully doing of any act prohibited by law, and for which the defendant had no lawful excuse ; and that moral turpitude of mind was not necessary to be shown.” If this definition of the crime charged were correct, it would follow that the words “ wilfully and maliciously” were intended by the legislature to be understood as synonymous, and that the statute is to be construed in the same manner as it would be if the word “ maliciously ” had *560been omitted. Such a construction, we are of opinion, cannot be sustained ; for if it could be, it would follow, that a person would be liable to be punished criminally, and with great severity, for every wilful trespass, however trifling the injury might be, to the personal property of another, which could not be justified or excused in a civil action against him, for the recovery of damages, by the owner. We do not suppose the learned judge intended to be so understood by the jury; but they might so understand him. As to that part of the instruction, that moral turpitude of mind was not necessary to be shown, whether correctly stated or not, we do not think it material to consider. The question is not whether the jury were rightly instructed as to what facts would not constitute malice, but as to what facts would constitute malice, or be presumptive and conclusive proof of it. The learned judge was probably of opinion, that if the mare was injured, as alleged, by the discharge of a gun, loaded with powder and shot, that, ipso facto, would be conclusive proof of malice. But that question, we think, should have been submitted to the jury. The gun might have been loaded for the purpose of shooting small birds, with a very light charge of powder, and very fine shot, which would not be likely to kill or do great bodily harm ; and we do not know, that any great bodily harm was done. The only facts established by the verdict are, that the mare was injured by the defendant, by the discharge of a gun loaded with powder and shot, and that the act was done wilfully; but an act may be unlawful, and may be done wilfully, with or without malice, recording to the evidence of the motive, and of the circumstances attending the transaction. The evidence, therefore, should have been submitted to the jury, with instructions, that they would not be warranted in finding a verdict of guilty, unless the injury charged in the indictment was done by the defendant, not only wilfully, but also maliciously ; that if the injury was done intentionally and by design, and not by mistake, accident, or inadvertence, that would fully support the allegat'-on in the indictment, that it was doné wdfully *561according to the true meaning of the statute. But the jury might infer malice from the fact, that the injury was done by the discharge of a gun loaded with powder and shot, unless the inference were rebutted by the evidence, showing that the gun was so loaded that it was not likely to kill or do any great bodily harm ; and the jury should have been so instructed. The jury should also have been instructed, that, to authorize them to find the defendant guilty, they must be satisfied, that the injury was done either out of a spirit of wanton cruelty or wicked revenge. Malicious mischief, amounting to a crime, is so defined by Blackstone, 4 Bl. Com. 244, and in Jacob’s Law Dictionary, by Tomlin, under the title “ Mischief, Malicious and we have no doubt that such is the true definition of the crime.

Exceptions sustained, and new trial granted.

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