¶1The defendant was convicted for whipping a school child about 13 years of age. Tbe authority of teachers to correct their pupils for disobedience and the limitations thereon have long since been set-died.
¶21. If they inflict such punishment as produces or threatens lasting mischief, they are guilty.
¶32. If they inflict punishment, not in the honest performance of duty, but under the pretext of duty to gratify malice, they are.guilty. State v. Pendergrass, 2 Dev. & Bat., 365.
¶4His Honor charged the jury: “1. That if the defendant inflicted a permanent injury he was guilty- 2. Malice means dad temper, high temper or quick temper, and if the injury was inflicted from malice, as above defined, then they should convict the defendant.” This definition of malice is imperfect and misleading. It may exist without temper, and it may not exist although the act may be done whilst under the influence of temper, bad, high or quick. It is well defined in Brooks v. Jones, 11 Ired., 260 : “Gen*799eral malice is wickedness, a disposition to do wrong, a black and diabolical heart, regardless of social duty and fata'ly bent on mischief.” This is malice against mankind. “Particular malice is ill will, grudge, a desire to be revenged on a particular person.” This distinction was not explained to the jury, but the term “malice” was given to them with an erroneous definition. Whether the jury rendered a verdict of guilty, on the ground of permanent injury, which was a good ground if they so believed, or on the ground of malice, “as above defined,” we do not and cannot know, and we must direct that the matter be further inquired of. The error was in the mistaken definition of malice. As the case goes back, we need not discuss the other matters argued before us. The rule forbidding the use of excessive force applies to school teachers and all in like positions, as it does to all other persons.
¶5New Trial.