apparatus connected therewith, or severs any wire thereof, is guilty of a misdemeanor. History: Enacted February 14, 1872, founded on § 695 of the New York Penal Code of 1852, and § 8 Act April 18, 1862, Cal. Stats. 1862, p. 290; amended by Code Commission, Act March 16, 1901, by insertion of words "or telephone, or any other line used to conduct electricity," Stats. and Amdts. 1900-1, p. 469, act held unconstitutional, see history, 171a, ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 683; amended March 10, 1909, Stats. and Amdts. 1909, p. 272. INJURING TELEGRAPH OR TELEPHONE LINES. 1. Construction of section-As to repeal. 4. What is no defense-Advice of counsel. 1. Construction of section-As to repeal. -The 1905 amendment does not repeal section 593. The words "any other line used to conduct electricity" are within the rule of construction known as ejusdem generis, and refer to things of the same general nature, as those specified. It is a matter of common knowledge that wires used to conduct electric currents of high voltage are heavier and more carefully insulated than those used for telegraph, telephone, fire and burglar alarms, and it was such wires as the general language of this section was intended to apply, and not the wires devoted to the purposes so distinctly set forth in section 593.-Matter of Petition of Johnson, 167 Cal. 142, 138 Pac. 740. 2. Same-"Telegraph” includes telephone. -Under this section, word "telephone" is included within meaning of "telegraph," and prosecution will lie thereunder for cutting and destruction of telephone-wires.Davis v. Pacific T. & T. Co., 127 Cal. 312, 315, 59 Pac. 698. See City of Richmond v. Southern Bell T. & T. Co., 28 C. C. A. 659, 85 Fed. 19. 3. Malicious mischief—“Any line of telegraph"-Telephone lines.-The case of Davis v. Pacific Tel. & Tel. Co., 127 Cal. 312, 59 Pac. 698, where this phraseology was held to include telephone lines, is distinguished, and the construction there made held to be inapplicable to a grant of rights of way for telegraph lines in the public highways under section 536 C. C., so as to authorize an extension of the provisions thereof to telephone lines.-Sunset Tel. & Tel. Co. v. Pasadena, 161 Cal. 275, 118 Pac. 796. 4. What is no defense-Advice of counsel.-Fact that defendants were advised by counsel to cut certain telegraph-wires in order to make test case is no defense to prosecution under this section.-Davis V. Pacific T. & T. Co., 127 Cal. 312, 319, 59 Pac. 698. § 592. WATER DITCHES, ETC., PENALTY FOR TRESPASS OR INTERFERENCE WITH. Every person who shall, without authority of the owner or managing agent, and with intent to defraud, take water from any canal, ditch, flume or reservoir used for the purpose of holding or conveying water for manufacturing, agricultural, mining, irrigating or generation of power, or domestic uses, or who shall without like authority, raise, lower or otherwise disturb any gate or other apparatus thereof, used for the control or measurement of water, or who shall empty or place, or cause to be emptied or placed, into any such canal, ditch, flume or reservoir, any rubbish, filth or obstruction to the free flow of the water, is guilty of a misdemeanor. History: Enacted March 20, 1899, Stats. and Amdts. 1899, p. 146. § 593. PENALTY FOR INTERFERENCE WITH ELECTRIC WIRES. Every person who unlawfully and maliciously takes down, removes, injures, interferes with, or obstructs any line erected or maintained by proper authority for the purpose of transmitting electricity for light, heat, or power, or any part thereof, or any insulator or cross-arm, appurtenance or apparatus connected therewith, or severs or in any way interferes with any wire, cable, or current thereof, is punishable by imprisonment in the state prison not exceed ing five years, or by fine not exceeding five hundred dollars, or imprisonment in the county jail not exceeding one year. History: Enacted March 2, 1901, Stats. and Amdts. 1900-1, p. 92. INTERFERING WITH ELECTRIC WIRES -PENALTY. 1. Construction of section-As to what forbidden. 2, 3. Same As not repealed by amendment to section 591, ante. 4. Evidence-As to authority to do business. 5, 6. Same-Misconduct of prosecutor-Condonement by defendant. 7. Injunction will not lie to restrain owners. 1. Construction of section-As to what forbidden. This section forbids only unlawful and malicious removal or interference with wires, and even if such wires constituted unlawful obstructions in street, they would still be private property, and unlawful and malicious injury of them would be proper subject for punishment.-Sullivan v. San Francisco G. & E. Co., 148 Cal. 368, 371, 83 Pac. 156. 2. Same-As not repealed by amendment to section 591, ante.-Section 593 of the Penal Code, adopted in 1901, making it a felony maliciously to interfere with the conductors of electricity used for light, heat or power, was not repealed by the amendment of 1905 to section 591 of such code, making it a misdemeanor maliciously to interfere with telegraph lines, "or any other line used to conduct electricity." The words, "or any other line used to conduct electricity," come within the rule of construction known as ejusdem generis, and refer to things of the same general nature as those specified.-Ex parte Johnson, 167 Cal. 142, 138 Pac. 740. 3. In such cases the particular words are inserted for the purpose of describing certain species and the general words to include other species of the same genus. The rule is founded upon the reason that if the general words were intended to prevail in their full and unrestricted sense, the special words would not be employed by the lawmakers at all.-Ex parte Johnson, 167 Cal. 142, 138 Pac. 740. 4. Evidence-As to authority to do business. The proof on the part of the people in this prosecution for interference with electric wires abundantly establishes the fact that the complaining corporation was authorized to do business at its location at the time of the commission of the offense, and that the evidence upon the whole case, direct and circumstantial, amply supports the verdict that the defendant was the perpetrator of the offense.-People v. McAlpine, 25 Cal. App. 727, 145 Pac. 152. 5. Same Misconduct of prosecutor Condonement by defendant.-In this prosecution for the crime defined by section 593 of the Penal Code, there is no merit in the claim that the district attorney was guilty of misconduct, and that while he should not have asked the questions complained of, whatever harm resulted therefrom was cured and condoned by the subsequent question of defendant's counsel bringing out the identical matter embraced in the objectionable questions.-People v. McAlpine, 25 Cal. App. 727, 145 Pac. 152. 6. Error, if any, of such a character, is cured by the bringing out of the same subject matter by defendant's counsel.-People v. McAlpine, 25 Cal. App. 727, 145 Pac. 152. 7. Injunction will not lie to restrain owners of electric light or power lines, properly maintained on streets, from instituting or maintaining criminal proceedings under this section, against defendants engaged in business of house-movers in city under permit from municipal authorities to move houses over and upon certain streets, although the interferences with electic wires were neither unlawful nor malicious. -Sullivan v. San Francisco G. & E. Co., 148 Cal. 368, 371, 83 Pac. 156. § 593a. DRIVING NAILS, ETC., IN WOOD INTENDED FOR MANUFACTURE OF LUMBER. Every person who maliciously drives or places in any saw-log, shingle-bolt, or other wood, any iron, steel, or other substance sufficiently hard to injure saws, knowing that such saw-log, shingle-bolt, or other wood is intended to be manufactured into any kind of lumber, is guilty of a felony. History: Enacted by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 469; act held unconstitutional, see history, § 5, ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 683, and being a codification of the Act of February 9, 1876, Stats. 1875-6, p. 32, see Henning's General Laws (1st ed.), p. 703. § 594. MALICIOUS MISCHIEF IN GENERAL, DEFINED. Every person who maliciously injures or destroys any real or personal property not his own, in cases otherwise than such as are specified in this code, is guilty of a misdemeanor. History: Enacted February 14, 1872. 25. Same-Much depends upon particular 26. Redress for private grievance. 28. What is not malicious mischief-Tear- As to burning bridge on highway, see post, § 600 and note. As to malicious mischief generally, see full collection cases in note, 128 Am. St. Rep. 163. As to malicious mischief at common law, see note, 32 Am. Dec. 662-665. As to malicious mischief under statutory regulations, see note, 32 Am. Dec. 665, 666. As to cruelty to fowls, such as chickens, is a misdemeanor, see note, 78 Am. St. Rep. 240. 1. As to construction of statute-Devised to reach what.-Statutes which punish malicious or mischievous injury to property of another as crime are not intended to make every wilful and wrongful act so punishable, but they are devised to reach that class of cases where act is done with deliberate intention to injure.-State v. Johnson, 7 Wyo. 512, 11 Am. Cr. Rep. 598, 54 Pac. 502. 2. Same-Driving sheep.-Under statutes of Wyoming, defendant can not be convicted of malicious mischief for driving band of sheep across uninclosed, unimproved, and uncultivated lands of prosecuting witness, where he does not stop to graze them longer than his sheep do graze in being driven from place to place, where usual and ordinary methods are employed so to drive them.-State v. Johnson, 7 Wyo. 512, 11 Am. Cr. Rep. 598, 54 Pac. 502. 3. Defenses. — Actual ill-will toward owner not actuating defendant in the acts complained of, does not constitute a defense in a prosecution for malicious mischief under the statute.-State v. Boise, 68 Kan. 167, 1 Ann. Cas. 491, 74 Pac. 630. Lack of malice toward owner of the property, either express or implied, is said by an editor on Ruling Case Law, to constitute a complete defense; but no authority is cited to support this broad assertion, which is probably erroneous.-See 8 R. C. L. p. 302, § 327. 4. Same. - Necessity for protection or preservation of own property, where no element of malice toward owner exists, furnishes a complete defense in a criminal prosecution charging malicious mischief.Wright v. State, 30 Ga. 325, 76 Am. Dec. 656. 5. Thus, where a person kills a tresactual passing animal, during an act of trespass by it, for the sole purpose of preventing destruction of crop, he is not guilty of the offense of malicious mischief.Branch v. State, 41 Tex. 622. As to right to kill trespassing animals, see note, 16 Ann. Cas. 951. 6. Compare: Snap v. People, 19 Ill. 80, 68 Am. Dec. 582; Jones v. States, 3 Tex. App. 228. an 10. Essential ingredients - Malice.-In prosecution for malicious mischief, malice toward owner is essential ingredient, and should always be alleged in indictment. -State v. Lightfoot, 107 Iowa 344, 11 Am. Cr. Rep. 588, 78 N. W. 41; State v. Boise, 68 Kan. 167, 1 Ann. Cas. 491, 74 Pac. 630. As to meaning of "malice" and "malcious" as used in statutes denouncing malicious mischief, see note, 1 Ann. Cas. 494, 128 Am. St. Rep. 165. As to malice as an essential element of the offense, see 8 R. C. L. p. 299, § 323. As to necessity of showing malice, see 8 R. C. L. p. 300, § 324. 11. Same-Same-What necessary.-Malice necessary to constitute offense of malicious mischief or malicious trespass is something more than malice which is ordinarily inferred from wilful doing of unlawful act without excuse.-State v. Johnson, 7 Wyo. 512, 11 Am. Cr. Rep. 598, 54 Pac. 502. 12. Same- Specific intent as essential element. In malicious mischief, specific intent is an essential element.-Note to State v. Johnson, 58 Ohio St. 417, 65 Am. St. Rep. 769, 11 Am. Cr. Rep. 603, 51 N. E. 40. 13. Exists under common law.-Offense of malicious mischief exists under common law of this country.-State v. Watts, 48 Ark. 56, 57, 3 Am. St. Rep. 216, 2 S. W. 342. As to indictment for malicious mischief, sec notes, 32 Am. Dec. 670; 128 Am. St. Rep. 172. 16. Same. Following language of statute substantially is requisite and will be the elements of the sufficient, where all offense statute are under the set forth. -People v. Keeley, 81 Cal. 210, 212, 22 Pac. 593; People v. Boren, 139 Cal. 210, 72 Pac. 899; Hogan v. Superior Court, 16 Cal. App. 783, 117 Pac. 947. See 2 Kerr's Wharton on Criminal Procedure (tenth edition), section 945; notes 32 Am. Dec. 670; 128 Am. St. Rep. 172. 17. Same-Intent and malice being necessary elements under the statute must be alleged in appropriate averments, charging or misthat the act was maliciously chievously done with intent to injure the owner. See Mich. People v. O'Brien, 60 Mich. 8. 26 N. W. 795. Minn. United States v. Gideon, 1 Minn. 292; State v. Ward, 127 Miss. Thompson Minn. 510, 150 N. W. 209. N. C. State v. Jackv. State, 51 Miss. 353. Tenn. Boyd son. 34 N. C. (12 Ired. L.) 329. Tex. v. State, 21 (2 Humph.) 39. Tenn. Wis. State v. State v. Rector, 34 Tex. 565. Delue, 2 Pinn. 204, 1 Chand. 166. ---- 18. Same-Value of property need not be stated. In prosecution for maliciously injuring property, when it is averred that property, or owner thereof, has been damaged in certain amount, value of property Sample v. injured need not be stated. State, 104 Ind. 289, 6 Am. Cr. Rep. 416, 4 N. E. 40. See note 128 Am. St. Rep. 174. 19. Must be object of act.-To bring an offense under head of malicious mischief, it must appear that mischief was itself the object of act, and not that it was incidental unlawful.other act, lawful some State v. Johnson, 7 Wyo. 512, 11 Am. Cr. Rep. 598, 54 Pac. 502. to or 20. Nature of offense.-A civil wrong and rot a crime, according to those courts in which there is an adherence to Blackstone's definition of malicious mischief as a trespass which has been made penal.-See State v. Beekman. 27 N. J. L. (3 Dutch.) 124, 72 Am. Dec. 352; State v. Manuel, 72 N. C. 201, 21 Am. St. Rep. 455. As to whether marauding animal without killing it is indictable offense where maliciously done. See note 72 Am. Dec. 357. 21. Same.-A crime at common law in those jurisdictions in which it is held that the word "trespass" was used in the common-law definition in the sense of a misdemeanor.-State v. Watts, 48 Ark. 56, 3 Am. St. Rep. 216, 2 S. W. 342. 22. Same.-Consists in wilful and unlawful injury to or destruction of the property of another with a malicious intent to injure the owner; and it does not include injury to destruction of property through mere wantonness, or a mere intent to injure it.State v. Leslie, 138 Iowa 104, 128 Am. St. Rep. 160, 115 N. W. 897. or 23. Same.-Mischief done incidental to other act is held not to constitute the offense of malicious mischief.-State V. Johnson, 7 Wyo. 512, 11 Am. Cr. Rep. 598, 54 Pac. 502. 24. Thus, where a person who is entitled to the joint use of an elevator, on finding the elevator locked, breaks the lock in order that he may procure the use to which he is legally entitled, is not guilty of the offense of malicious mischief. Carstraphen State, 112 Ga. 230, 37 S. E. 423. V. V. 25. Same.-Much depends upon the particular phraseology of the statute under In some which the prosecution is had. cases it is held that there are two conditions of malicious mischief: (1) That the act complained of shall have been done maliciously, either out of a spirit of revenge or wanton cruelty, or (2) that it shall have been done "mischievously."-Duncan State, 49 Miss. 331. 26. Redress for private grievance.-The machinery of criminal law can not be properly invoked for redress of merely private A civil action for trespass may grievance. be maintained in class of cases for purpose of testing and settling question of title, but charge of malicious mischief or malicious trespass can not be rightfully prosecuted for such purpose, since, however conclusive evidence of title in prosecuting witness may be, defendant may nevertheless be acquitted on proof of bona fide claim of title and absence of any malicious intent in transaction.-Hughes v. State, 103 Ind. 344, 5 Am. Cr. Rep. 373, 2 N. E. 956. even 27. Statutes-Apply to what.-Statutes relating to malicious mischief only apply to those cases where wilful injury is done means of exactto property of another as ing vengeance against owner of property.State v. Johnson, 7 Wyo. 512, 11 Am. Cr. Rep. 598, 603, 54 Pac. 502. As to property subject of malicious mischief, see 8 R. C. L. p. 301, section 325. See, also, note, 11 Am. Cr. Rep. 602, 603. 28. is What not mischiefmalicious is not when. It down Tearing fence, malicious mischief for man, while in possession of premises and paying rent therefor, to tear down fence placed thereon against his consent and protest.-Sattler v. People, 59 Ill. 68, 70. |