## Facts

- Henry Pembliton was ejected from a public house for disorderly conduct and became involved in a street fight.
- During the altercation, he threw a stone at people with whom he was fighting.
- The stone missed the intended target and broke a plate-glass window belonging to a third party, causing damage exceeding £5.
- Pembliton was charged under § 51 of the Malicious Damage Act 1861 for unlawfully and maliciously damaging property.
- The jury found that Pembliton intended to strike a person and did not intend to break the window, but nonetheless convicted him of unlawful and malicious property damage.

## Issues

1. Whether “maliciously” under § 51 of the Malicious Damage Act 1861 requires intent to damage property or subjective foresight of the risk of such damage.
2. Whether intent to harm a person can be transferred to satisfy the mens rea for malicious damage to property when property is damaged instead.

## Decision

- The Court for Crown Cases Reserved quashed the conviction.
- The court held that § 51 required intent (or subjective foresight) as to property damage, which the jury’s findings negated.
- The court rejected transferring intent to strike a person into “malice” toward property damage for purposes of § 51.

## Legal Principles

- For statutory malicious damage to property, “maliciously” requires proof that the defendant:
  - intended to damage property, or
  - subjectively contemplated the risk of property damage and proceeded anyway.
- Transferred malice does not apply across different kinds of protected interests where the offence requires mens rea directed to property but the defendant’s intent was directed only at harming a person.
- A conviction for malicious damage cannot stand when the factfinder affirmatively finds no intent to damage property and no subjective foresight of that risk.

## Conclusion

The court set aside Pembliton’s conviction because the offence required mens rea directed to property damage, and his intent to injure a person could not be treated as the required “malice” toward property through transferred malice.


Regina v. Pembliton, 12 Cox C.C. 607 (Ct. Crown Cas. Res. 1874)