Malice

1 Wicked intention to do an injury.2 In law, any improper and sinister motive; not necessarily spite and hatred.^ Wantonness; willful disregard of right and duty: doing an act contrary to a man's own convictions of duty.* The state of mind in which one willfully does that which he knows will injure another's person or property. ^ Not limited to acts done from hatred, revenge, or passion; includes all acts wantonly or willfully done, that is, acts which any man of reason, knowledge, and ability must know to be contrary to his duty.* In homicide, a wicked, malignant, and revengeful act, flowing from a heart regardless of social duty, and fatally bent on mischief.' In trespass, when the injury has been wanton, ol- gross and outrageous.8 Not merely the doing of an unlawful or injurious act, but an act conceived in a spirit of mischief, or of criminal indifference to civil obligation.9 Thus, in malicious prosecution, the term is quite comprehensive, and includes many phases of wrong motive and conduct. There may be ill-will, malevolence, spite, a spirit of revenge, or a purpose to injure without cause, but it is not necessary there should be. If the prosecution is willful, wanton or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy, it is malicious. ^° ^ F. malipe: L. malitia, badness.

See Malitia.

2 Tuttle u Bishop, 80 Conn. 83 (1861). ' Mitchell V. Wall, 111 Mass. 498 (1873), eases. ' United States v. Buggies, S Mas. 192 (1838), Story, J. ii Territory v. Egan, 3 Dak. 130 (1882), Kidder, J. » United States v. Coffin, 1 Sumn. 398 (1833), Story, J.; Wiggin V. Coffln, 3 Story, 1 (1888); Dexter v. Speai', 4 Mas. 117 (1826); United States v. Harriman, 1 Hughes, 5-38 (1878). ' United States v. Ruggles, supra. See also 37 Ind. 114; 89 id. 193; 26 Ga. 156, 275; 30 Miss. 678; 31 Mo. 147; 19 Iowa, 447; 85 Mich. 16. s Day V. Woodworth, 13 How. 371 (1851). « Philadelphia, &c. E. Co. v. Quigley, 21 How. 214 (1853), Campbell, J.; Milwaukee, &o.

R. Co. ^v. Arms, ' 91 U. S. 493 (1876). '» Hamilton v. Smith, 39 Mich. 329 (1878), Graves, J.; In a newspaper publication, malice in uttering false statements may consist either in a direct intention to injure another, or in a reckless disregard of his rights, and of the consequences that may result to him. J Want of knowledge may aggravate the malignity of the case by showing an indiscriminate malice and indifference to the peace of the innocent.-* Actual malice J malice in fact; express m.alice. Malice existing as a matter of fact. Express malice in homicide exists when one, with a sedate, deliberate mind and formed design, doth kill another; which design is evidenced by external circumstances discovering that inward intention; as, lying in wait, antecedent menaces, former grudges, and concerted schemes to do bodily harra.^ Express malice consists in the deliberate intention of doing any bodily harm to another, unauthorized by law.^ Express malice means a deliberate intention and design to commit the offense in question^" Constructive malice; implied malice; legal malice. Malice inferred from acts; malice imputed in law. Implied malice, or malice in law, is malice inferred from an act, presumed from a deliberate act, though no particular enmity can be proved. -As. where a man kills another without provocation — which evidences an abandoned heart; or where a criminal kills a, person who is endeavoring to make a lawful arrest; or where a person, intending to commit another felony, kills a man — as, shoots at A and kills B against whom he has no ill-intent; or, a killing by an abortionist. Any such killing is murder, because of the previous felonious intent, which the law transfers to the act. Indeed, all felonious homicide is presumed to be malicious until the contrary appears. ° Implied malice is malice which has no existence in fact, but which the law imputes to the guilty party. ^ Implied malice exists where mischief is intentionally done without just cause or excuse." Malice aforethought "or prepense. In homicide, Hot so properly spite or malevolence to the deceased in particular, as an evil 1 Gott V. Pulsifer.

133 Mass. 239 (1877), Gray, C. J.; Lothrop V. Adams, 183 id. 479.(1882); Barr v. Moore, 87 Pa.. 393 (1878); Negley v. Farrow, 60 Md. 171" (1882); Odgers, Lib. & SI. *264; Townshend, SI. & Lib. § 87.

2 Dexter v. Spear, 4 Mas. 11" (1835), Story, J. s 4 Bl. Com. 199. * People V. Clark, 7 N. T. 333 (1858). » [Anthony v. State, 21 Miss. 264 (1850). ' 4 Bl. Com. 199-301. ' Darry v. People, 10 N. Y. 188 (1854). * Parke v. Blackiston, 3 Harr. 378 (Del.. 1841). See, on express and implied malice, 31 Cal. 53; 12 Pla. 135; 8 Ga. 334; 26 id. 156; 101 111. 331; 1 Ind. 3S3; 8 La. An. 969; 37 Me. 468; 9 Mete 104; 15 Pick. 337; 30 Miss. 684; 25 Mo. 151; 43 id. 161, 3!3; 11 S. & R. 40; 82 Tex. design in general; the dictate of a wicked, depraved, and a malignant heart.i Is not confined to homicide committed in cold blood, with settled design and premeditation, but extends to all cases of homicide, however sudden the occasion, when the act is done under such cruel circumstances as are the ordinary symptoms o£ a wicked, depraved, and malignant spirit.^ Includes not ouly anger, hatred, and revenge, but every other unlawful and unjustifiable motive. Is not confined to ill-will toward one or more individual persons, but is intended to denote an action flowing from any wicked and corrupt motive, a thing done malo animo, where the fact has been attended with such circumstances as carry in them the plain indication of a heart regardless of social duty, and fatally bent on mischief. Therefore, murder is implied from an.y deliberate or cruel act against another, however sudden. The words do not imply deliberation, or the lapse of considerable time between the malicious intent to take life and the actual execution of that intent, but they rather denote purpose and design, in contradistinction to accident and mischance.^ Whenever a homicide is shown to have been committed without lawful authority and with deliberate intent, it is sufficiently proved to have been with malice aforethought. It is not necessary to prove that any special or express hatred or malice was entertained by the accused toward the deceased. It is sufficient to prove that the act was done with deliberate intent, as distinct from an act done under the sudden impulse of passion, in the heat of blood, and without previous malice.* See Murder. Particular malice; personal malice. Particular malice is ill-will, grudge, a desire to be revenged on a particular person.''' Personal malice is spite against some particular individual. It is one of the two varieties of malice in fact, the other being what Blackstone terras " universal " malice, or malice against the world generally, without reference to individuals: as, where a person discharges a gun into a multitude, or starts out to kill and does kill the first man he meets." Malicious. Characterizes an act not only when it arises fi-om personal spite, but when it is a wanton and intentional injury, when it is willful.' ' 4 Bl. Com. 198. ■' United States v. Cornell, 2 Mas. 91 (1820), Story, J. ■Commonwealth, v. Webster, 5 Cush. 304-0(1850), Shaw, C. J. • United States v. Guiteau, 10 F. R. 162, 165 (1882), Cox, J.; Davison v. People, 90 111. 229 (1878); Spies et al. D.Teop Ie, 122 id. 174 (1887). 1 Brooks V. Jones, 11 Ired. L. 261 (1850). " See 4 Bl. Com. 200; Brown's Law Diet. See gen- 'erally 1 Curtis, 4; 1 Dak. 458; 29 Ga. 594; 29 Kan. 427; 13 Mo. 332; Ifl Nev. 307; 49 N. H. 399; 13 Wend. 159; 68 Pa. 9; 14 Tex. Ap. 236, 300, 331; Law Mag. & Rev,, Aug. In a legal sense, describes any unlawful act done willfully and purposely to the prejudice and injury of another.' The intentional doing of a wrongful act with knoivledge of its character, and without cause or excuse.^ Describes the state of mind in which many acts (crimes and torts) are done: as, malicious — abandonment, arrest, battery, burning, communication, desertion, injury, intention, libel, mischief, prosecution, publication, gg. v. Maliciously. With deliberate intention to injure; willful: as, the malicious burning of a building.' Maliciously suing out an attachment means not only malevolent intention to do injury, but also that careless disregard of the rights of others which, without real ill-will, the law implies as malice.* In a spirit of wicked revenge toward a person, or of wanton cruelty toward an animal.^ In misdemeanors and felonies, imports a criminal motive, intent or purpose.^ See Dbuberation, 3; Damages, Exemplary; Intent: Knowledge, 1; Motive.