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.

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.

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."

Commonwealth v. Cimino, 34 Mass. App. Ct. 925, 927 (1993). See Commonwealth v. Hosman, 257 Mass. 379, 384-385 (1926); Commonwealth v. Peruzzi, supra at 442 n. 4. Wilful and malicious destruction of property is a specific intent crime, and wilfulness requires proof that the defendant intended both the conduct and its harmful consequences.

To constitute malice, it is not necessary that the defendant know the owner of the property. ( People v. Jones, 241 Ill. 482, 16 Ann. Cas. 332, 89 N.E. 752; Commonwealth v. Hosman, 257 Mass. 379, 154 N.E. 76.) Appellants' requested Instruction No. 3 was sufficiently covered by Instructions Nos. 12 and 13 as given.

Although the basis for a rational estimate of substantial damages was scanty, we cannot say that no basis existed, or that the award of more than nominal damages must have been a pure speculation. Maynard v. Royal Worcester Corset Co. 200 Mass. 1, 8. Wellington v. Cambridge, 220 Mass. 312, 317. Lowrie v. Castle, 225 Mass. 37, 51, 52. Whitcomb v. Reed-Prentice Co. 262 Mass. 348, 360. O'Reilly's Case, 265 Mass. 456. Commonwealth v. Hosman, 257 Mass. 379, 386. Bradford v. Cunard Steamship Co. 147 Mass. 55, 57. Hawkins v. Jamrog, 277 Mass. 540, 544, 545. Connery v. Cass, 277 Mass. 545, 551. If, as we think, more than nominal damages could be awarded, the defendant raises no question as to their amount or the method by which the judge assessed them. Page v. Johnston, 205 Mass. 274, 279. The general exception to the finding does not raise the point that the evidence was insufficient in law to support it. Keohane, petitioner, 179 Mass. 69, 73. Reid v. Doherty, 273 Mass. 388.

Commonwealth v. Capland, 254 Mass. 556. Commonwealth v. Friedman, 256 Mass. 214. Taylor v. Creeley, 257 Mass. 21. Commonwealth v. Hosman, 257 Mass. 379, 386. Claffey v. Fenelon, 263 Mass. 427, 435.

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).

In addition, the judge in his charge did not instruct the jury that they had to find that the gun's value was in excess of one hundred dollars. We do not consider that the common experience of jurors enables them to assess the value of a gun, compare Commonwealth v. Hosman, 257 Mass. 379, 386 (1926), and Tracy did not admit that its value exceeded $100. Compare Commonwealth v. Camelio, 1 Mass. App. Ct. 296, 302 (1973). The value of the property stolen determines the punishable offense under G.L.c. 266, § 60. Even in the absence of a request, the jury must be instructed on this point.

Certainly the jury may apply their own "common sense" to this valuation issue. See Commonwealth v. Hosman, 257 Mass. 379, 385-386 (1926). In any case, and assuming the point has some tangential evidentiary worth, the jury reasonably could infer that the car was capable of being driven and still was in service from Banton's testimony that, on the day of the crime, he had parked the car on the right side of the street across from his apartment building.