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tirely on the malice or wantonness of the defendant, "malice" in that sense meaning not general malice, nor malice exhibited in other matters or at other times, but malice in the very matter he is found liable for. Moore v. Duke, 80 Atl. 194, 197, 84 Vt. 401.

The term "malice," as used in the rule that, wherever an injury complained of had been inflicted with malice or wantonly and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person, is not merely the doing of an unlawful or injurious act, but the word implies that the act complained of was conceived in a spirit of mischief or a criminal indifference to civil obligation. Philadelphia, B. & N. R. Co. v. Green, 71 Atl. 986, 989, 110 Md. 32.

In order to justify the imputation of "malice," within the rule of punitive damages, the injury must have been conceived in a spirit of mischief and partake of a criminal or wanton nature. Baxter v. Campbell, 97 N. W. 386, 387, 17 S. D. 475.

For the purpose of determining whether exemplary damages are properly allowed, the word "malice" means that the act done must have been without right or justifiable cause. Smith v. Morgantown Ice Co., 74 S. E. 961, 963, 159 N. C. 151.

"Malice," in 2 Rap. & L. Law Dict. p. 784, is defined as follows: "Malice,' in common acceptation, means ill will against a person; but, in its legal sense, it means a wrongful act done intentionally, without just cause or excuse." In 2 Bouv. Law Dict. (Rawle's Ed.) p. 295, it is defined as follows: "A malicious act is a wrongful act intentionally done without cause or excuse." In defining “malicious," Black, in his Law Dictionary (page 745), says: "Evincing malice; done with malice and an evil design: willful." An instruction that "by 'mali. cious,' as used in this instruction, is meant a doing of the wrongful act without legal right" was wrong as authorizing exemplary damages for any entry without legal right on the premises of another. The instruction should have used the word "intentional." Ohio Valley Tel. Co. v. Meyer (Ky.) 56 S. W. 673, 674.

In an action by a street car passenger for injuries caused by an assault by the conductor, the charge that, if the jury found for plaintiff, then, in assessing damages, they were not limited to physical injury inflicted, if any, but in addition thereto, if they found that the wrongful acts of the conductor were “malicious" (i. e., the intentional doing of a wrongful act without cause or excuse). they might allow such punitive damages as would be a punishment and a wholesome warning to others, in the absence of a request for a more specific instruction on the measure of damages, was not objectionable as

misleading. Mills v. Metropolitan St. Ry. Co., 137 S. W. 1006, 1007, 157 Mo. App. 529. In alienation of affections

"The term 'malice,' as applied to torts, does not necessarily mean that which must proceed from a spiteful, malignant, or revengeful disposition, but a conduct injurious to another, though proceeding from an illregulated mind, not sufficiently cautious before it occasions an injury to another." Hence the law implies malice, where defendant unwarrantedly alienated the affections of plaintiff's husband. Sickler v. Mannix, 93 N. W. 1018, 68 Neb. 21 (citing Weckerly v. Geyer [Pa.] 11 Serg. & R. 39).

In an action for alienation of a wife's

affections, the term "malice" does not necessarily mean that which must proceed from a spiteful, malignant, or revengeful disposition, but, if the conduct was unjustifiable and actually caused the injury, malice in law will be implied. Boland v. Stanley, 115 S. W. 163, 166, 88 Ark. 562, 129 Am. St. Rep. 114.

In bankruptcy act

The provision of the bankruptcy act, excepting from the operation of a discharge judgments for "malicious injuries," etc., contemplates something more restricted than "malice" in the broader sense. Flanders v. Mullin, 66 Atl. 789, 80 Vt. 124, 12 Ann. Cas. 1010.

The term "malicious," as used in Bankr. Act July 1, 1898, c. 541, § 17, 30 Stat. 550, providing that a discharge in bankruptcy shall relieve the bankrupt from all his provable debts, except judgments in actions for willful and malicious injuries to the person or property of another, means nothing more ed in the intentional doing of a wrongful than that disregard of duty which is involvact to the injury of another. McChristal v. Clisbee, 76 N. E. 511, 190 Mass. 120, 3 L. R. A. (N. S.) 702, 5 Ann. Cas. 769.

The word "willful," as used in Bankr. Act July 1, 1898, c. 541, § 17, as amended by Act Feb. 5, 1903, c. 487, § 5, 32 Stat. 798 (U. S. Comp. St. Supp. 1907, p. 1026), providing that a discharge in bankruptcy shall relieve the bankrupt from all provable debts except liabilities for obtaining property by for "willful and malicious" injuries to the false pretenses, or false representations, or person or property of another, means nothing more than intentional; while the word "malice," as there used, is intended to imply nothing more than a disregard of duty which is involved in the intentional doing of a willful act to the injury of another. Kavanaugh v. McIntyre, 112 N. Y. Supp. 987, 990, 128 App. Div. 722.

Where a lessee assigned his lease to his wife with the consent of the landlord, and the landlord subsequently instituted summary proceedings to dispossess the lessee with

6 Pennewill, 148; State v. Powell (Del.) 61 Atl. 966, 971, 5 Pennewill, 24; State v. Brown (Del.) 80 Atl. 146, 149, 2 Boyce, 405; State v. Bell (Del.) 62 Atl. 147, 148, 5 Pennewill, 192; State v. Roberts (Del.) 78 Atl. 305, 309, 2 Boyce, 140; State v. Russo (Del.) 77 Atl. 743, 745, 1 Boyce, 538; State v. Reese (Del.) 79 Atl. 217, 220, 2 Boyce, 434; State v. Todd, 92 S. W. 674, 676, 194 Mo. 377; State v. McCarver, 92 S. W. 684, 686, 194 Mo. 717.

out making the wife a party, and under | v. Johns (Del.) 65 Atl. 763, 764, 6 Pennewill, the judgment of dispossession the landlord, 174; State v. Honey (Del.) 65 Atl. 764–766, through agents, took possession of the premises and removed the wife's property and forcibly removed the wife, a judgment for the wife for damages for the acts of the landlord was based on "willful" and "malicious" acts, within Bankruptcy Act July 1, 1898, c. 541, § 17, providing that a discharge in bankruptcy does not release the bankrupt from judgments for willful and malicious injuries to the person or property of another; the word "willful" meaning nothing more than "intentional," and the word "malice" in its legal sense meaning a wrongful act done tentionally, without just cause or excuse. In re Munro, 195 Fed. 817, 823 (citing 5 Words and Phrases, pp. 4298-4312).

"Malice" is the ingredient that characterizes murder, and distinguishes it from in-homicide of other grades. It is express when admitted or asserted, or may be implied from any unlawful acts of the assailant which in itself denotes a wicked heart fatally bent on mischief, or a reckless disregard of human life. State v. De Paolo (Del.) 84 Atl. 213, 214.

If I

"Malice, in common acceptation, means ill will against a person; but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally and without just cause or excuse. If I maim cattle without knowing whose they are, if I poison a fishery without knowing the owner, I do it of malice, because it is a wrongful act and done intentionally. If I am arraigned of felony and willfully stand mute, I am said to do it of malice, because it is intentional and without just cause or excuse. If I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not." The law will imply that degree of malice in an act of criminal conversation which is sufficient to bring a judgment for damages therefor within the exception mentioned in Bankr. Act July 1, 1898, c. 541, § 17, subd. 2, 30 Stat. 550, declaring that judgments for willful and malicious injuries to the person or property of another shall be exempted from a discharge in bankruptcy. Tinker v. Colwell, 24 Sup. Ct. 505, 508, 193 U. S. 473, 48 L. Ed. 754.

In criminal law

"Malice" is an essential ingredient of the crime of murder of either degree, and it is a condition of the mind or heart, not being restricted to spite or malevolence toward the particular person slain, but also including that general malignity and reckless disregard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief. State v. Underhill (Del.) 69 Atl. 880, 882, 6 Pennewill, 491; State v. Wiggins (Del.) 76 Atl. 632, 634, 7 Pennewill, 127; State v. Brown (Del.) 61 Atl. 1077, 1078, 5 Pennewill, 339; State v. Watson (Del.) 82 Atl. 1086, 1087; State v. Tilghman (Del.) 63 Atl. 772, 773, 6 Pennewill, 44; State

3 WDS.& P.2D SER.-15

In criminal law "malice" may denote that condition of the mind which is manifested by the intentional doing of a wrongful act without just cause or excuse. Alt v. State, 129 N. W. 432, 436, 88 Neb. 259, 35 L. R. A. (N. S.) 1212.

"Malice," as used in the law of homicide, means a wrongful act done intentionally without just cause or excuse. State v. Kinder, 83 S. W. 964, 969, 184 Mo. 276.

"Malice" is a deliberate intention unlawfully to take human life. Robinson v. State, 58 S. E. 842, 843, 129 Ga. 336.

Legal "malice" is the intent unlawfully to take human life in cases where the law neither mitigates nor justifies the killing. Mann v. State, 53 S. E. 324, 326, 124 Ga. 760, 4 L. R. A. (N. S.) 934; Tucker v. Same, 66 S. E. 250, 251, 133 Ga. 470.

"Malice," which is a necessary element of murder in the first and second degrees, means a killing without legal excuse, and is presumed from killing with à deadly weapon. State v. Roberson, 64 S. E. 182, 185, 150 N. C. 837.

The law implies malice, where there is a homicide with a deadly weapon, and there are no circumstances of mitigation, justification, or excuse. Clardy v. State, 131 S. W. 46, 47, 96 Ark. 52.

"Malice," in homicide, is a condition of the mind or heart, and is not restricted to spite or malevolence toward decedent, and includes that general malignity and reckless disregard of human life which proceeds from a heart fatally bent on mischief. State v. Brooks (Del.) 84 Atl. 225, 227.

"Malice," legally speaking, in relation to murder, is a conscious violation of law to the prejudice of another; evil design in general; the dictates of a wicked, depraved, and United States v. Hart, 162 malignant heart. Fed. 192, 194.

Though one's heart may be full of sin, | maliciously. State v. Brinte (Del.) 58 Atl. it is not legally malicious, unless it prompts 258, 262, 4 Pennewill, 551. the willful or intentional doing of a wrongful act without just cause or excuse. Ferguson, 74 S. E. 502, 505, 91 S. C. 235.

State v.

"Legal malice," as applied to homicide, is not ill will or hatred, but is an unlawful intention to kill without justification or mitigation existing at the time of killing. The intention need not exist for any length of time before the killing, and a man may form the intention to kill, do the killing instantly, and regret the deed as soon as done. Long v. State, 56 S. E. 444, 446, 127 Ga. 350 (citing Bailey v. State, 70 Ga. 617 [29]; Weeks v. State, 3 S. E. 323 [4], 79 Ga. 37).

"Malice," in homicide, includes not only anger, hatred, and revenge, but every other unlawful and unjustifiable motive. Malice is not confined to ill will towards an individual, but is intended to denote an action flow

ing from any wicked and corrupt motive, a thing done with a wicked mind, where the fact has been attended with such circumstances as evince plain indications of a heart regardless of social duty and fatally bent on mischief. Malice is implied from any deliberate or cruel act against another, however sudden, which shows an abandoned and malignant heart. Parsons v. People, 75 N. E. 993, 996, 218 Ill. 386.

"Malice” in law does not necessarily

In the statute declaring it murder in the first degree for any person to purposely and in his deliberate and premeditated malice kill another, "malice" is not confined to ill will toward an individual, but it is intended to denote an action flowing from any wicked and corrupt motive. A thing done with a wicked mind, and attended with such circumstances as plainly indicate a heart regardless of social duties and fully bent on mischief, indicates malice, within the meaning of the law. Malice may be either expressed or implied. Express malice may appear from all the evidence and circumstances of the alleged killing. Implied malice may appear where there is no just cause or excuse of the alleged killing. State v. Lindgrind, 74 Pac. 565, 566, 33 Wash. 440.

"Malice," which is a condition of the mind, and is not restricted to spite or malevolence toward a particular person, but includes general malignity and reckless disregard of human life, is an essential to the crime of murder. State v. Short (Del.) 82 Atl. 239, 241, 2 Boyce, 491.

"Malice' in homicide does not mean mere spite or ill will, as generally understood, but signifies an unlawful state of the mind, and such state of the mind as one is State v. Brown, 79 S. W. 1111, 1112, 181 Mo. in who intentionally does an unlawful act.”

192.

mean hate or ill will, but is that mental condition which prompts the willful doing of an unlawful act; and so, in a prosecution for "Malice," in homicide "does not mean killing an officer, an instruction that if the mere spite or ill will, as it is ordinarily unaccused, being subject to arrest, merely kill-derstood, but means that condition of the ed the officer to escape arrest the killing is malicious, is proper. McGuffin v. State (Ala.) 59 South. 635, 636.

mind which prompts one person to take the life of another without just cause or justification, and it signifies a state or disposition which shows a heart regardless of social duties and fatally bent on mischief." State v. Atchley, 84 S. W. 984, 989, 186 Mo. 174.

"Malice' is a condition of the mind or

"Malice" in common acceptation means ill will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse. Bromage v. Prosser, 10 E. C. L. 321. In law "malice" heart." As used in the definition of murder, is a term of art, importing wickedness, and the term is not restricted to spite or malevoexcluding a just cause or excuse. State v.lence toward the particular person slain, but Doig (S. C.) 2 Rich. 182. There can be no doubt that malice is presumed from an intentional killing, in the absence of facts or circumstances in evidence tending to show want of malice. State v. McDaniel, 47 S. E. 384, 387, 68 S. C. 304, 102 Am. St. Rep. 661.

"Malice" is not restricted to spite or malevolence toward the deceased in particular, but in its legal sense it is understood to mean the general malignity and recklessness of the lives and personal safety of others, which proceed from a heart void of a just sense of social duty and fatally bent on mischief. Malice is implied by law from every deliberate, cruel act committed by one person against another, no matter how sudden such act may be; for the law considers that he who does a cruel act voluntarily does it

includes that reckless disregard of human life which proceeds from a heart void of a just sense of social duty and fatally bent on mischief. Wherever the fatal act is done deliberately or without adequate cause, the law presumes that it was done with "malice," and the burden is on the prisoner to show that the act was not so done. State v. Powell (Del.) 61 Atl. 966, 971, 5 Pennewill, 24.

"Malice," in law, is manifested by the intentional doing of a wrongful act to the injury of another, without just cause or excuse; and in the law of homicide it may mean either an intent to do either serious bodily harm or to take life. State v. Silverio, 76 Atl. 1069, 1072, 79 N. J. Law, 482.

"Malice" is the chief and distinguishing characteristic of murder, is either express

or implied, and may be proven by a deliberately formed design to kill, by the preparation of the weapon or other means for doing great bodily harm, by circumstances of brutality attending the act, or by previous hostility, or threats and declarations of intention to kill, or to do serious injury. Esterline v. State, 66 Atl. 269, 270, 105 Md. 629.

The "malice" essential to constitute murder is not restricted to spite or malevolence towards decedent, but means that general malignity or recklessness which proceeds from a heart devoid of a just sense of social duty and fatally bent on mischief, and is implied by law from every deliberate cruel act committed by one person against another; and where the act from which death ensues appears prima facie to have been committed deliberately, the law presumes that it was done in malice, and accused must show that the offense is of a mitigated character and does not amount to murder. State v. Blackburn (Del.) 75 Atl. 536, 539, 7 Pennewill, 479.

Under the statute making any person who willfully and maliciously burns any dwelling house, etc., guilty of arson, etc., the malice intended by the law signifies the intent from which flows the unlawful act, committed without legal justification; and when the act constituting the attempt is proved to have been done, and to have been done willfully, it is then inferred to have been done maliciously. State v. Lockwood (Del.) 74 Atl. 2, 3, 1 Boyce, 28.

"Malice," essential to murder of the second degree, is implied by law from every unlawful and cruel act committed by one person against another, so that, where the killing is done with a deadly weapon likely to produce death it is presumed to have been done maliciously. State v. Roberts (Del.) 78 Atl. 305, 310, 2 Boyce, 140.

"Malice," in the law of homicide, is a condition of the mind or heart, which may be shown by the deliberate selection and use of a deadly weapon, or by antecedent menaces or threats, such as disclose a purpose on the part of accused to commit the act .charged. Malice, in the law of homicide, may be implied from any unlawful act, such as in itself denotes a wicked heart fatally bent on mischief, or a reckless disregard of human life, or from an act from which death ensues, unaccompanied by circumstances of justification, excuse, or mitigation, and on such act being shown it is incumbent on accused to show to the satisfaction of the jury that the killing was not malicious. State v. Johnson (Del.) 78 Atl. 605, 606, 2 Boyce, 49.

"Malice" may be implied when an act which produces death is attended by such circumstances as are the ordinary symptoms of a wicked and depraved spirit, or from attending circumstances of atrocity and cruelty, or from the unlawful use of a deadly weapon; and, where an unlawful homicide is shown and no circumstances of mitigation or excuse appear, malice will be presumed. State v. Kritchman (Conn.) 79 Atl. 75, 77.

The "malice" which would make an act murder may be proved by direct evidence, or may be implied from any unlawful act, indicating a wicked heart bent on mischief, or a reckless disregard of human life, such as the deliberate selection and use of a deadly weap-act established either by proof or presump

on. State v. Jackson (Del.) 82 Atl. 824, 825. In a prosecution for murder, "malice" may be implied from any unlawful act denoting a wicked heart bent on mischief, and so the deliberate selection and use of a deadly weapon upon another is evidence of malice. State v. Stockley (Del.) 82 Atl. 1078, 1079.

Where a killing is accomplished with a deadly weapon, malice is presumed, in the absence of evidence to the contrary. State v. Primrose (Del.) 77 Atl. 717, 719, 2 Boyce, 164; Same v. Russo (Del.) 77 Atl. 743, 745, 1 Boyce, 538.

Wherever murder is done deliberately or without adequate cause, the law presumes that it was done with malice; and the burden is on the prisoner to show that the act was not malicious. State v. Brown (Del.) 80 Atl. 146, 149, 2 Boyce, 405; Same v. Bell (Del.) 62 Atl. 147, 148, 5 Pennewill, 192; Same v. Primrose (Del.) 77 Atl. 717, 719, 2 Boyce, 164; Same v. Roberts (Del.) 78 Atl. 305, 309, 2 Boyce, 140; Same v. Russo (Del.) 77 Atl. 743, 745, 1 Boyce, 538.

"Under Pen. Code, art. 4, § 7, defining the words 'malice' and 'maliciously' as importing a wish to vex, annoy, or injure another person, or an intent to do a wrongful

tion of law," where a defendant was on trial for assault in the first degree, the crime involved a specific intent as the gist of the offense, and it was error for the court to instruct that, when an unlawful act is shown to have been deliberately committed for the purpose of injuring another, it is presumed to have been committed with a malicious and guilty intent, and the law presumes that a person intends the ordinary consequences of any voluntary act committed by him. v. Schaefer, 88 Pac. 792, 793, 35 Mont. 217.

State

A charge defining murder substantially as it is defined in Pen. Code, § 188, and stating that malice does not necessarily mean that the accused must have entertained toward the deceased feelings of spite, hatred, or ill will, but that the word meant more under the statute, and that there might be legal malice where there was no spite or hatred or ill will, and explaining that an unlawful act done intentionally, without just cause or excuse, is an act, in the contemplation of law, done with malice as that word is understood in criminal judicature,

was not erroneous. People v. McRoberts, 81 Pac. 734, 736, 1 Cal. App. 25.

On a trial for murder, an instruction that "malice is the intentional killing of a

72 S. C. 104.

Where, in a prosecution for homicide, person, knowing it to be wrong, intending to the court defined "malice," as an element do it, knowing it to be wrong," without legal of murder, as a deliberate intention unlaw-excuse, is not error, especially when followed fully to take away the life of a fellow crea- by a full statement of the law as to manture, without provocation or under circum- slaughter. State v. Byrd, 51 S. E. 542, 544, stances showing an abandoned or malignant heart, as provided by statute, defendant was not prejudiced by the fact that the court also stated that "malice" imported a wish to vex, annoy, or injure another, or an intent to do a wrongful act, as provided by section 7; though such definition was inapplicable to "malice" as an element to murder. People v. Waysman, 81 Pac. 1087, 1 Cal. App. 246.

Rev. St. 1898, § 4053, defines "malice" and "maliciously" as importing a wish to vex, annoy, or injure another person, or an intent to do a wrongful act. Section 4427 provides that every person who willfully, unlawfully, and maliciously administers any poison to an animal, the property of another, is punishable. Under such sections, the fact that the owner of a dog poisoned by defendant was unknown to defendant did not preclude a finding that the poison was administered maliciously. State v. Coleman, 82 Pac. 465, 466, 29 Utah, 417.

On the subject of murder, and in defining "malice," the court properly charged that it was a wicked condition of the heart, a wicked purpose, a performed purpose to do a wrongful act without sufficient legal provocation. State v. Gallman, 60 S. E. 682-686, 79

S. C. 229.

"Malice' is implied when an act dangerous to others is done so recklessly or wantonly as to evince depravity of mind and disregard of human life." Where two persons fought with firearms in a public place, their reckless disregard of law amounted to malice, rendering both guilty of murder. State v. Lilliston, 54 S. E. 427, 141 N. C. 857, 115 Am. St. Rep. 705.

An instruction that malice has been defined to be a term of art importing wickedness and excluding just cause and excuse is not erroneous, on the ground that it leads the jury to believe that mere wickedness is malice. State v. Miller, 53 S. E. 426, 427, 73 S. C. 277.

An instruction was held proper which defined "malice," as applied to assault with intent to kill, as "the intent to take human life unlawfully, where there are no circumstances of justification or mitigation for the act if the life should be taken as intended. It means the deliberate, intentional use of a deadly weapon for the purpose of taking human life, from whatever motive it springs, if there are no circumstances surrounding the transaction which mitigates or justifies the act." Napper v. State, 51 S. E. 592, 593, 123 Ga. 571.

After defining murder and malice, express and implied, in the language of the Penal Code (sections 60-62), it furnished no ground for reversal that the court added that malice was an unlawful intention to kill, without justification or mitigation. Leonard v. State, 66 S. E. 251, 253, 133 Ga. 435.

It is not error to charge that, whenever a person kills another with an intent to kill, that intent is malice, if it is a deliberate intention unlawfully to take human life. Rhodes v. State, 66 S. E. 887, 133 Ga. 723.

Where a homicide was committed by accused with an instrument which the jury found was a weapon likely to produce death, the law, from the use of such weapon, presumes malice and an intent to kill; there being evidence to authorize the finding of homicide unaccompanied with circumstances of mitigation. Flanagan v. State, 69 S. E. 171, 172, 135 Ga. 221.

In a murder trial where there was evidence furnishing a basis for implied malice, an instruction: "Malice is not confined to ill will toward an individual, but is intended to denote an action following from any wicked and corrupt motive-a thing done with a

wicked mind-where the fact has been attended with such circumstances as evince plain indications of a heart regardless of social duties and fatally bent on mischief; hence malice is implied from any deliberate and cruel act against another, however sudden, which shows an abandoned and malignant heart"-was correct. People v. Lucas, 91 N. E. 659, 664, 244 Ill. 603.

It was held proper to instruct the jury that "malice,' in its legal sense, denotes that condition of mind which is manifested by the intentional doing of a wrongful act without just cause or excuse. It means any willful and corrupt intent of mind, and as applied to this case, if you should be satisfied by all the evidence beyond a reasonable doubt that the defendant without just cause or excuse committed the offense charged in the manner and form as charged in the indictment, then it was done with malice or maliciously." Cate v. State, 114 N. W. 942,

944, 80 Neb. 611.

An instruction defining "murder in the second degree" as the killing of a human being "willfully, premeditatedly and with malice aforethought," and then defining "willfully" to mean intentionally, not by accident, "premeditatedly" to mean thought of beforehand for any length of time, however

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