OUJI-CR 5-108


No person may be convicted of malicious mischief unless the State has proved beyond a reasonable doubt each element of the crime. These element are:

First, maliciously;

Second, injuring, defacing or destroying;

Third, property;

Fourth, of another.


Statutory Authority: 21 O.S. 1991, § 1760.

Committee Comments

The gravamen of the offense of malicious mischief is the mens rea element "maliciously." A person acts maliciously when that person acts without justification or excuse in doing damage or harm to the legal rights of another. Thus, a person who randomly slashes automobile tires, or who randomly breaks windows, is acting maliciously, even though the person slashing the tires or breaking the windows has no idea whose tires or windows are being damaged. McDaris v. State, 505 P.2d 502 (Okl. Cr. 1973). The word "maliciously" does not connote ill-will or hatred of the owner of the property on the part of the person doing the damage. See McDaris, supra, overruling expressly Moran v. State, 316 P.2d 876 (Okl. Cr. 1957), and Colbert v. State, 7 Okl. Cr. 401, 124 P. 78 (1912), on the issue of the mens rea requirement for the crime created by section 1760. McDaris also inferentially overruled Thissen v. State, 21 Okl. Cr. 437, 209 P. 224 (1922), on this same point. Malicious mischief is, therefore, a crime meant for the protection of property per se, as opposed to protection of the property owner.

The conduct prohibited by the malicious-mischief statute is presented in the alternate language for the second element.

In contrast with the other property crimes, such as arson, larceny, embezzlement, and false pretenses, the statutory language of section 1760 indicates specifically that both real and personal property are protected. The third element, therefore uses the word "property."

Section 1760 is the general malicious-mischief statute. In accordance with the statutory language, section 1760 is to be used "in cases other than such as are specified in the following sections." Hence, if another statute covers a specific type of property, prosecution for damage to that type of property must be brought under the specific statute. Jackson v. State, 818 P.2d 910, 912 (Okl. Cr. 1991) ("if another statute covers a specific type of property, prosecution for damage to that property must be brought under the specific statute"); Church v. State, 406 P.2d 517, 519 (Okl. Cr. 1965) (damage to an automobile must be brought under 21 O.S. 1991, § 1787, or 47 O.S. 1991, § 4-104); 21 O.S. 1991, § 11.

Besides the general malicious-mischief statute in section 1760, there are a large number of specific statutes at 21 O.S. 1991 & Supp. 1995, §§ 1751-1789 with special provisions that protect a wide variety of particular types of property, such as 21 O.S. 1991 & Supp. 1995, §§ 1751-1752.2 (railroad property); 21 O.S. 1991, § 1755 (tollhouses); 21 O.S. 1991, § 1770-1773 (crops, trees, fruit, and flowers); and 21 O.S. 1991, § 1786 (utility pipes and lines).