The first statutes expressly dealing with "wanton" (as opposed to "malicious") mischief were apparently St. 1902, c. 544, §§ 30-32 (dealing with wanton destruction of items such as trees and fences), and St. 1904, c. 305 (dealing with wanton destruction of personal property). In Commonwealth v. Hosman, 257 Mass. 379 (1926), the court reviewed convictions of being accessories to the malicious destruction to two automobiles on an indictment framed with reference to the modern statute. The defendants' agent, engaged in delivering bootleg liquor, had allegedly been instructed by the defendants not to stop for police and to "crash through them" if necessary.

One alternative to the current model jury instruction would be to substitute the word “another” for the phrase “the owner [of the property].” See Commonwealth v. Hosman, 257 Mass. 379, 384–385, 154 N.E. 76 (1926), discussed infra. The defendant's reliance on Commonwealth v. Hosman, 257 Mass. 379, 154 N.E. 76 (1926), is misplaced.

In assessing whether a rational jury could find sufficient indicia of either "cruelty" or "hostility" on the part of the defendant and his confederates in the Commonwealth's scenario (we exclude consideration of the element of "revenge," which was not presented by the evidence), we are not unaware that the Commonwealth's case with respect to the requisite mental state must consist of "something more than a deliberate intent to do a wrong." Commonwealth v. Hosman, 257 Mass. 379, 384 (1926). (Such evidence would, however, establish the "wilfulness" element of the statutory violation, which the defendant does not contest.

Commonwealth v. Armand, 411 Mass. at 170. "Malice" requires a showing that the actor was "motivated by `cruelty, hostility or revenge'" (citation omitted) ibid., but this does not require, in the context of § 127, that the actor know who owned the property attacked, see Commonwealth v. Hosman, 257 Mass. 379, 384-385 (1926); Commonwealth v. Peruzzi, 15 Mass. App. Ct. at 442 n. 4; the animus need not have so personalized an object. Take the facts as one can raise them from Commonwealth v. Morrill, 14 Mass. App. Ct. 1003 (1982).

Therefore, he argues, malice cannot be inferred, and a required finding of not guilty should have been entered. In Peruzzi, this court traced the “development of the concept of malice in malicious damage cases” to Commonwealth v. Walden, 57 Mass. 558, 3 Cush. 558 (1849), and Commonwealth v. Hosman, 257 Mass. 379, 154 N.E. 76 (1926). We concluded that “the Hosman decision ... reaffirm[ed] the holdings in the earlier cases that ‘something more than a deliberate intent to do a wrong’ must be shown to establish malice.

It is true, as the Commonwealth points out, that the trier of fact may employ "common sense" and common experience to determine the valuation issue. See Commonwealth v. Muckle , 59 Mass.App.Ct. 631, 643, 797 N.E.2d 456 (2003), citing Commonwealth v. Hosman , 257 Mass. 379, 385-386, 154 N.E. 76 (1926). Here, however, equipped only with the brand and photograph of the ring, we cannot conclude that the application of common sense and experience is sufficient to fill the evidentiary gap. Compare Muckle , supra (noting jury may apply "common sense" to conclude that value of vehicle exceeded $250), with Tracy , 27 Mass.App.Ct. at 467, 539 N.E.2d 1043 (concluding common experience of jurors insufficient to establish that value of firearm exceeded one hundred dollars).

It is immaterial whether the defendant knew the identity of the owner of the property. Commonwealth v. Peruzzi, supra at 442 n. 4. See Commonwealth v. Hosman, 257 Mass. 379, 384-385 (1926). The evidence clearly warranted the judge in finding beyond a reasonable doubt that the defendant's destructive acts were by design and were hostile to the owner of the booth.

He requested that an additional special venire be drawn. In Commonwealth v. Hosman, 257 Mass. 379, 386 (1926), the venire was exhausted and jurors were summoned from another session to complete the panel. There is no showing that the defendant was prejudiced in any way by the selection of jurors from the regular jury pool.

Second, we believe that the facts underlying the presumption are within the jury's common sense and knowledge and that it would be inappropriate and artificial to forbid jurors to rely, at least in part, on their common experience. See Commonwealth v. Hosman, 257 Mass. 379, 386 (1926); United States v. Dube, 520 F.2d 250, 254-255 (1st Cir. 1975) (Campbell, J., concurring). Cf. Keys v. United States, 346 F.2d 824, 826 (D.C. Cir.), cert. denied, 382 U.S. 869 (1965). "[I]n deciding the issue of insanity in a criminal case, the jury may infer that the defendant is sane from their common knowledge of the fact that a great majority of men are sane, and of the probability that any particular man is sane."

The defendant relies heavily on a line of cases involving prosecutions for malicious mischief. Commonwealth v. Walden, 3 Cush. 558. Commonwealth v. Williams, 110 Mass. 401. Commonwealth v. Hosman, 257 Mass. 379. But these cases are not in point. In offences of that sort it has generally been recognized that malice has a meaning quite different from its ordinary meaning in the criminal law.