charging the jury:
[1] Gentlemen of the jury:—The offense for which this defendant is indicted is not a statutory offense in this state, but it is an offense that had its origin at common law. It possesses several elements which must be proven to secure a conviction, the principal one being the element of malice. In every trespass that amounts to malicious mischief, there must be malice of a certain character, that is, a certain malignity, which, when it inspires mischief, results in damage to the community or tends to a breach of the peace.
[2] We are convinced, from the testimony produced by the state, that this is not a case of malicious mischief; that at most it is a case of private trespass, for which the prosecutrix has her remedy against the defendant in a civil action. Therefore we think that the defendant should not be called upon to defend in a matter in which the state has not proven the elements of the crime *102charged against him. We therefore direct you and bind you to return a vérdict of not guilty.
Verdict, not guilty.