The herald., 1893-02-22
THE CONVICTION SUSTAINED,
Electric Road Employees Cam
not Injure Shade Trees.
Bean vs.. Stoneman, a Case InvO living
Some Water Questions.
A Suit Involving City Property Carlisle
Found Not Guilty-New Suits.
Notes of Cases Now
On Trial.

Judge Smith rendered his decision
yesterday in the case appealed by J. W,
Burgess ct al. from the police court, af-
frming the judgment Of the lower court
in accordance with the following opin-
ion:
"The defendants were convicted in the
.nlice court of misdemeanor, the COM
plant charging that on January IL,
1893, Re defendants did wilfully and
maliciously lh;nre and deface six shade
trees, within the limits of the said city
of Los Angeles, situated in front of the
residence Of said William Niles on East
Washington street, said trees being then
and there the property OF Nydia S. Niles,
and not the property OF the defendants.
The section under which the prosecution
was begun is No. 622, Penal Code, and is
as follows:
"'Every person not the owner thereof
vino wilfully Injuries, disigures or de-
stroye any monument, work of art or
useful or ornamental improvements with
in the limits of any village. town or city,
or any shade tree or ornamental plant
growing therein, whether situate on pri-
vate ground or on any street, sidewalk
or public park or place, lie guilty of q
misdemeanor.'
"The proof shows five shade trees Qarge
peppers), situate in front of William and
Nydia Niles's house on Washington
street, in this city, were by defendants,
while engaged in putting up electric
wires, cut, injured and defaced. for the
purpose of putting up such wire. The
proof does not show any malice on the
part of defendants towards anyone, nor
does it show property in Nydia Niles,
as alleged.
1t is commended, with much PLAUSIBLE
ity, by counsel fbr defendants that since
the section is fbun& in the chapter on
malicious mischief, Mud 1t being we'll
settled that in order to convict on
charge of malicious mischief, there
must be malice and ill will to-
wards the owner of the property; that,
therefore, there is complete failure in
in the proof to sustain the charge.
upon an examination Of the chapter
on malicious mischief it will be found
there are many actions therein where
the word "maliciously" is used, and
many where the word "wilfully" is used
and "maliciously" omitted, and upon
examination of those sections, where
the distinction obtains 1t will be
apparent that it was not accidental,
but for purpose. Notably is this so in
section 500, where it is made a crime to
wilfully administer poison to an animal,
the property of another, and section 500
which provides that the killing and
trapping of birds in a public cemetery
ia crime; also section 500 which pro-
vides that whoever wilfully removes any
buoy, ETC., is guilty Of misdemeanor
SO that the word "wilfully" in the eec-
ton under consideration is used for a
purpose, it being apparent that one
might destroy shade trees that really
had no owner. unless it might be quail
fled ownership, as that of the city. So
that it is not necessary to allege or
prove malice in this case, nor is it nee
essary to allege or prove ownership, it
being sufficient in this regard to allege
that they were shade trees, situate
within the corporate limits and were
not the property of the defendants.
1.-THE only question now to be consid-
cred is whether the injury to the shade
trees was done wilfully. Section 7 of
the penal code defines the word will.
fully 1t says: The word wilfully
when applied to the intent with which
an act is done or omitted implies simply
a purpose, or willingness to commit the
act. 1t does not require an intent to
violate law or injure another or acquire
any advantage.
"This definition disposes of the ques-
ton, the Judgment is affirmed and it is
80 ordered"