Hummel v. State
69 Okla. Crim. 38, 99 P.2d 913, 1940 OK CR 27 (1940)
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Rule of Law:
An act that damages another's property does not constitute malicious mischief if it is done in good faith to abate a private nuisance created by that property. The legal right to abate a nuisance negates the element of malice toward the property owner, which is an essential element of the crime.
Facts:
- Levi Latty owned a non-thoroughbred ('scrub') bull.
- Latty permitted his bull to run at large on an open range, which was a violation of an Oklahoma statute requiring free-roaming bulls to be pure or standard bred.
- Pat Hummel and Roy Hyatt owned a herd of thoroughbred cows on the same open range.
- Witnesses saw Hummel and Hyatt on horseback driving Latty's bull away from their thoroughbred cows and behind a hill.
- Shortly thereafter, witnesses heard a bull bawl.
- The next day, Latty's bull was discovered to have been castrated.
- There was no evidence of prior personal malice or controversy between Hummel and Hyatt and Latty.
Procedural Posture:
- Pat Hummel and Roy Hyatt were jointly charged with malicious mischief in the county court of Cherokee county, Oklahoma (a trial court).
- A jury found both defendants guilty but failed to agree on the punishment.
- The trial court judge sentenced each defendant to pay a $50 fine.
- The defendants, Hummel and Hyatt, appealed the judgment to the Criminal Court of Appeals of Oklahoma (the state's highest criminal appellate court).
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Issue:
Does the act of castrating another's non-thoroughbred bull, which was unlawfully running at large in violation of statute, constitute the crime of malicious mischief when the purpose of the act is to protect one's own property from the private nuisance created by the bull?
Opinions:
Majority - Hoyle, P. J.
No, the act does not constitute the crime of malicious mischief. For a conviction of malicious mischief, the state must prove the defendant acted with malice toward the owner of the property, which is the gravamen of the offense. Here, the prosecuting witness, Latty, violated state law by allowing his non-thoroughbred bull to run at large, thereby creating a private nuisance that threatened the defendants' thoroughbred cattle. Under Oklahoma statutes and common law, a person aggrieved by a private nuisance has the right to summarily abate it, provided they do so without a breach of the peace or unnecessary injury. The defendants' actions were not motivated by a desire to vex or annoy Latty, but were a good-faith effort to protect their property by abating a nuisance. This assertion of a legal right negates the element of malice required for a malicious mischief conviction.
Analysis:
This case clarifies the significant distinction between a trespass to chattels and the crime of malicious mischief by focusing on the defendant's intent. It establishes that the lawful abatement of a private nuisance serves as a defense to a malicious mischief charge because it negates the essential element of malice. The decision reinforces that the 'malice' required must be actual ill will or a desire to vex the property owner, not merely the intent to perform the act that causes the damage. This precedent protects property owners who take reasonable, necessary steps to defend their property from legally recognized nuisances, shifting the focus in such cases from the act itself to the motive behind it.
