State v. Hussey

The R. S. of 1871, c. 127, § 7, provide, among other things, for the punishment of ‘ wilfully and maliciously ’ throwing down a gate.

The allegation in the indictment is that the defendant ‘ did unlawfully and maliciously throw down a certain gate,’ etc.

These words do not describe the statute offense. The indictment should charge the offense in the words-of the statute, or in words equivalent thereto. The statute uses the words ‘ wilfully and maliciously.’ It does not regard them as identical in meaning, as both are used. When the statute makes the doing of an act ‘ wilfully and maliciously ’ criminal, it will not be sufficient in the indictment to charge that it was done ‘ feloniously, unlawfully, and *411wilfully.' State v. Gove, 34 N. H. 511. So, charging an offense to have been committed ‘ feloniously, voluntarily, and maliciously,’ instead of ‘ feloniously, unlawfully, and maliciously,’ is bad. Rex v. Reader, 19 E. C. L., 367. Unlawfully doing a thing is not synonymous with wilfully doing it. A man may do many things wilfully, which are not unlawful, and he may do things unlawfully which are not wilfully done.

It was held in Rex v. Davis, 1 Leach, 556, that ‘ unlawfully and maliciously ’ is not equivalent to wilfully and maliciously, and that as ‘ wilfully and maliciously ’ were both mentioned in the statute as descriptive of the offense, both must be stated in the indictment.

Exceptions sustained.