1. One who is prosecuted under the provisions of the Penal Code, §729, which declares that “All other acts of willful and malicious mischief, in the injuring or destroying any other public or private property not herein enumerated, shall be misdemeanors,” can not be legally convicted unless the j evidence shows that the property described in the indictment or accusation was either destroyed or suffered some material and substantial injury. The mere fact that the accused is guilty of an act which put the owner of the • property to expense and annoyance, but which did not destroy or injure the property, does not authorize a conviction under the section above quoted.
2. It follows from the foregoing that one who goes to the wood rack of another, which contains cord wood, and willfully and maliciously throws the same from the rack, but does not injure or destroy the wood, is not guilty of a violation of the code section above quoted'; notwithstanding the act in question was such as to damage the owner of the property, in that he was required to go to the expense and trouble of replacing the wood upon the rack.
Judgment reversed.
All the Justices concurring, except Lewis, J., absent.