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or implied, and may be proven by a deliber- "Malice," essential to murder of the secately formed design to kill, by the prepara- ond degree, is implied by law from every untion of the weapon or other means for doing lawful and cruel act committed by one person great bodily harm, by circumstances of bru- against another, so that, where the killing is tality attending the act, or by previous hos- done with a deadly weapon likely to produce tility, or threats and declarations of inten- death it is presumed to have been done tion to kill, or to do serious injury. Ester- maliciously. State v. Roberts (Del.) 78 Atl. line v. State, 66 Atl. 269, 270, 105 Md. 629. 305, 310, 2 Boyce, 140.

The "malice" essential to constitute "Malice," in the law of homicide, is a murder is not restricted to spite or malevo- condition of the mind or heart, which may be lence towards decedent, but means that gener- shown by the deliberate selection and use of al malignity or recklessness which proceeds a deadly weapon, or by antecedent menaces from a heart devoid of a just sense of social or threats, such as disclose a purpose on the duty and fatally bent on mischief, and is im- part of accused to commit the act .charged. plied by law from every deliberate cruel act Malice, in the law of homicide, may be imcommitted by one person against another; plied from any unlawful act, such as in itand where the act from which death ensues self denotes a wicked heart fatally bent on appears prima facie to have been committed mischief, or a reckless disregard of human deliberately, the law presumes that it was life, or from an act from which death ensues, done in malice, and accused must show that unaccompanied by circumstances of justificathe offense is of a mitigated character and tion, excuse, or mitigation, and on such act does not amount to murder. State v. Black- being shown it is incumbent on accused to burn (Del.) 75 Atl. 536, 539, 7 Pennewill, 479. show to the satisfaction of the jury that the Under the statute making any person (Del.) 78 Atl. 605, 606, 2 Boyce, 49.

killing was not malicious. State v. Johnson who willfully and maliciously burns any dwelling house, etc., guilty of arson, etc., the "Malice" may be implied when an act malice intended by the law signifies the in- which produces death is attended by such tent from which flows the unlawful act, com- circumstances as are the ordinary symptoms mitted without legal justification; and when of a wicked and depraved spirit, or from atthe act constituting the attempt is proved tending circumstances of atrocity and cruelto have been done, and to have been done will- ty, or from the unlawful use of a deadly weapfully, it is then inferred to have been done on; and, where an unlawful homicide is maliciously. State v, Lockwood (Del.) 74 Atl. shown and no circumstances of mitigation 2, 3, 1 Boyce, 28.

or excuse appear, malice will be presumed. The “malice” which would make an act State v. Kritchman (Conn.) 79 Atl. 75, 77. murder may be proved by direct evidence, or "Under Pen. Code, art. 4, § 7, defining may be implied from any unlawful act, in the words 'malice' and 'maliciously' as imdicating a wicked heart bent on mischief, or porting a wish to vex, annoy, or injure a reckless disregard of human life, such as the another person, or an intent to do a wrongful deliberate selection and use of a deadly weap- act established either by proof or presumpon. State v. Jackson (Del.) 82 Atl. 824, 825. tion of law,” where a defendant was on trial

In a prosecution for murder, “malice" for assault in the first degree, the crime inmay be implied from any unlawful act denot- volved a specific intent as the gist of the ofing a wicked heart bent on mischief, and so fense, and it was error for the court to the deliberate selection and use of a deadly instruct that, when an unlawful act is shown weapon upon another is evidence of malice. to have been deliberately committed for the State v. Stockley (Del.) 82 Atl. 1078, 1079.

purpose of injuring another, it is presumed

to have been committed with a malicious and Where a killing is accomplished with a guilty intent, and the law presumes that a deadly weapon, malice is presumed, in the ab- person intends the ordinary consequences of sence of evidence to the contrary. State v. any voluntary act committed by him. State Primrose (Del.) 77 Atl. 717, 719, 2 Boyce, v. Schaefer, 88 Pac. 792, 793, 35 Mont. 217. 164; Same v. Russo (Del.) 77 Atl. 743, 745, 1

A charge defining murder substantially Boyce, 538.

as it is defined in Pen. Code, $ 188, and statWherever murder is done deliberately or ing that malice does not necessarily mean without adequate cause, the law presumes that the accused must have entertained tothat it was done with malice; and the ward the deceased feelings of spite, hatred, burden is on the prisoner to show that the act or ill will, but that the word meant more was not malicious. State v. Brown (Del.) under the statute, and that there might be 80 Atl. 146, 149, 2 Boyce, 405; Same v. Bell | legal malice where there was no spite or (Del.) 62 Atl. 147, 148, 5 Pennewill, 192; hatred or ill will, and explaining that an Same v. Primrose (Del.) 77 Atl. 717, 719, unlawful act done intentionally, without 2 Boyce, 164; Same v. Roberts (Del.) 78 Atl. just cause or excuse, is an act, in the con305, 309, 2 Boyce, 140; Same v. Russo (Del.) templation of law, done with malice as that 77 Atl. 743, 745, 1 Boyce, 538.

word is understood in criminal judicature, was not erroneous. People v. McRoberts, 81 On a trial for murder, an instruction Pac. 734, 736, 1 Cal. App. 25.

that "malice is the intentional killing of a 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 72 S. C. 104. heart, as provided by statute, defendant was After defining murder and malice, exnot prejudiced by the fact that the court also press and implied, in the language of the stated that "malice” imported a wish to vex, Penal Code (sections 60-62), it furnished no annoy, or injure another, or an intent to do a ground for reversal that the court added that wrongful act, as provided by section 7; | malice was an unlawful intention to kill, though such definition was inapplicable to without justification or mitigation. Leonard "malice" as an element to murder. People v. V. State, 66 S. E. 251, 253, 133 Ga. 435. Waysman, 81 Pac. 1087, 1 Cal. App. 246.

It is not error to charge that, whenever Rev. St. 1898, 8 4053, defines “malice" and a person kills another with an intent to kill, "maliciously" as importing a wish to vex, that intent is malice, if it is a deliberate inannoy, or injure another person, or an in- tention unlawfully to take human life. tent to do a wrongful act. Section 4427 pro- Rhodes v. State, 66 S. E. 887, 133 Ga. 723. vides that every person who willfully, un

Where a homicide was committed by aclawfully, and maliciously administers any cused with an instrument which the jury poison to an animal, the property of another, found was a weapon likely to produce death, is punishable. Under such sections, the fact the law, from the use of such weapon, prethat the owner of a dog poisoned by defendant was unknown to defendant did not pre being evidence to authorize the finding of

sumes malice and an intent to kill; there clude a finding that the poison was administered maliciously. State v. Coleman, 82 Pac. of mitigation. Flanagan v. State, 69 S. E.

homicide unaccompanied with circumstances 465, 466, 29 Utah, 417.

171, 172, 135 Ga. 221. On the subject of murder, and in defin

In a murder trial where there was eviing “malice," the court properly charged that it was a wicked condition of the heart, a

dence furnishing a basis for implied malice, wicked purpose, a performed purpose to do a ill will toward an individual, but is intended

an instruction: "Malice is not confined to wrongful act without sufficient legal provoca- to denote an action following from any wicktion. State v. Gallman, 60 S. E. 682–686, 79 ed and corrupt motive—a thing done with S. C. 229.

wicked mind-where the fact has been at“Malice' is implied when an act danger-tended with such circumstances as evince ous to others is done so recklessly or wan- plain indications of a heart regardless of sotonly as to evince depravity of mind and dis- cial duties and fatally bent on mischief; regard of human life." Where two persons hence malice is implied from any deliberate fought with firearms in a public place, their and cruel act against another, however sudreckless disregard of law amounted to mal- den, which shows an abandoned and maligice, rendering both guilty of murder. State nant heart”-was correct. People v. Lucas, v. Lilliston, 54 S. E. 427, 141 N. C. 857, 115 91 N. E. 659, 664, 244 Ill. 603. Am. St. Rep. 705.

It was held proper to instruct the jury An instruction that malice has been de- that “malice,' in its legal sense, denotes fined to be a term of art importing wicked- that condition of mind which is manifested ness and excluding just cause and excuse is by the intentional doing of a wrongful act not erroneous, on the ground that it leads the without just cause or excuse. It means any jury to believe that mere wickedness is mal willful and corrupt intent of mind, and as ice. State v. Miller, 53 S. E. 426, 427, 73 s. applied to this case, if you should be satisC. 277.

fied by all the evidence beyond a reasonable An instruction was held proper which doubt that the defendant without just cause defined “malice,” as applied to assault with or excuse committed the offense charged in intent to kill, as "the intent to take human the manner and form as charged in the inlife unlawfully, where there are no circum- dictment, then it was done with malice or stances of justification or mitigation for the maliciously.” Cate v. State, 114 N. W. 942, act if the life should be taken as intended. 914, 80 Neb. 611. It means the deliberate, intentional use of a An instruction defining "murder in the deadly weapon for the purpose of taking second degree” as the killing of a human human life, from whatever motive it springs, being "willfully, premeditatedly and with if there are no circumstances surrounding malice aforethought," and then defining the transaction which mitigates or justifies “willfully" to mean intentionally, not by acthe act.” Napper v. State, 51 S. E. 592, 593, cident, “premeditatedly” to mean thought of 123 Ga. 571.

beforehand for any length of time, however

short, and stating that “malice" did not, ally understood, but signifies an unlawful mean mere hatred or dislike, but that condi- state of the mind, and such state of the mind tion of mind which prompted a person to as one is in who intentionally does an unlawintentionally take the life of another, and ful act. State v. Hottman, 94 S. W. 237, 239, that “malice aforethought” meant malice 196 Mo. 110. with premeditation, properly defined “mur

"Malice" does not mean mere spite or der in the second degree.” State v. Myers, ill will, as the term is commonly understood, 121 S. W. 131, 135, 221 Mo. 598.

but means the intentional doing of a wrong"Malice" means that condition of the ful act, and signifies that state of mind or mind which prompts one to do a wrongful disposition which would prompt one person act intentionally, and to take the life of an- to take the life of another or do him some other without legal justification or excuse. great bodily harm without just cause or exIt does not mean mere spite, hatred, or ill cuse. State v. Tetrick, 97 S. W. 564, 565, 199 will, but it signifies the state of disposition Mo. 100. which shows a heart regardless of social Where one intentionally, willfully, withduty and fatally bent on mischief. Malice out justification or excuse, and while his may be presumed from the intentional use mind was cool enough to realize the nature of of a deadly weapon in a manner likely to his acts, shot another with intent to kill, he produce death. State v. Vaughan, 98 S. W. was actuated by “malice.” Williams v. State, 2, 5, 200 Mo. 1.

135 S. W. 552, 553, 61 Tex. Cr. R. 589. In a prosecution for murder, the court "Malice," as an element of murder, concharged that “malice is also necessary to templates wickedness and excludes a just or murder in the first degree. The distinguish- legal cause of excuse. It is "expressed" ing feature, so far as malice is concerned, is where there is positive direct evidence showthat, in murder of the first degree, malice ing that, at the time of the killing, it was must be proven to your satisfaction beyond really entertained and “implied," where the a reasonable doubt as an existing fact, while evidence does not directly show that the malin murder of the second degree malice will ice was entertained at that time but is necesbe implied from the fact of an unlawful kill. sarily indirectly implied from the circuming." Held that, if the instructions stood stances and facts which have been proved. alone, the latter part of the paragraph might State v. Lee, 60 S. E. 524, 525, 79 S. C. 223. be erroneous, but as it was followed by an

A charge on a trial for murder that malinstruction defining malice as being that which the law infers from certain acts, how- and desire for revenge, but every other un

ice included not only anger, hatred, ill will, ever suddenly done, as when the fact of an lawful and unjustifiable motive; that a thing unlawful killing is established and the facts | done with a wicked mind and attended with do not establish malice beyond a reasonable

such circumstances as plainly indicated a doubt, though they tend to excuse or justify heart regardless of social duty and fully bent the act, then the law implies malice, and the

on mischief indicates malice within the meanmurder is murder of the second degree, and ing of the law; and that the existence of malalso that if the killing is unlawful and done ice is inferred from acts committed or words with implied malice aforethought, it would spoken-was not erroneous, nor was the subbe murder in the second degree, the instruc- stitution of the word “fully” for “fatally” tions taken together were correct. Eggle

prejudicial. Maynard v. State, 116 N. W. ston v. State (Tex.) 128 S. W. 1105, 1109.

53, 57, 81 Neb. 301. The term "malice" does not mean mere

As respects the offense of willfully and hatred or ill will, as the term is commonly maliciously burning property of another, understood, but it means the intentional do the "malice” must have as its object some ing of a wrongful act, and signifies that state of the mind or disposition that would and not the property itself; but it is not nec

person, ordinarily the owner of the property, prompt one man to take the life of another, or do him some great bodily harm, without essary that the offender knew who the own

er was, it being enough that he was bent on just cause or excuse. State v. Bond, 90 S.

mischief against the owner, whoever he might W. 830, 831, 191 Mo. 555.

be. State v. Leslie, 115 N. W. 897, 898, 138 The distinguishing feature in the degrees Iowa, 104, 128 Am. St. Rep. 160. of murder, so far as the element of malice is

In a prosecution for assault with intent concerned, is that, in murder in the first de to kill, a charge that, if the jury believed gree, “malice” must be proved to the satisfac. from the evidence beyond a reasonable doubt tion of the jury beyond a reasonable doubt that accused intentionally and maliciously as an existing fact, while in murder in the shot at prosecuting witness with a gun with second degree "malice” will be implied from the intent to kill her, he should be convicted, the fact of the unlawful killing. McLin v. and defining malice as including not only anState, 90 S. W. 1107, 1108, 48 Tex. Or. R. 549.

ger, hatred, and revenge, but every unlawful "Malice," as used in defining murder, and unjustifiable motive used by a person in does not mean mere spite or ill will, as gener-| the commission of an act, was not erroneous in view of Snyder's Comp. Laws 1909, $ 2307, While it is true that in slander "malproviding that every person who intentionally ice" is the gist of the action, yet the term and wrongfully shoots, shoots at, or attempts “malice" is always used in such cases in a to shoot at another with any kind of a fire- legal sense. Weller v. Western State Bank arm, with intent to kill any person, is punish- of Waukomis, 90 Pac. 877, 882, 18 Okl. 478. able. Bartell v. State, 111 Pac. 669, 670, 4

The word “malice," as used in the law of Okl. Cr. 135.

libel and slander, does not mean hatred or ill "Malice" in law does not necessarily will, but the want of legal excuse for the pubmean hate or ill will, þut is defined as any lication. Sheibley v. Nelson, 121 N. W. 458, unlawful act, willfully done, without just 460, 84 Neb. 393. cause or legal excuse. It is that mental

"Malice" in fact may be defined as a state or condition which prompts the doing of spiteful or rancorous disposition which causan unlawful act without legal justification or es an act to be done for mischief. Implied extenuation. Patterson v. State, 47 South. malice is sufficient to support an action for 52, 54, 156 Ala. 62.

slander, where the other elements exist. An instruction that “malice" signifies a Proof of express malice authorizes punitive condition of the mind void of social duty and damages. Where one charges another with fatally bent on mischief, or an unlawful in- larceny, the law imputes malice. Lee v. tention to kill or do some great bodily harm Crump, 40 South. 609, 610, 146 Ala. 655 (quot. to another without just cause or excuse, is ing and adopting definition in Childers v. San correct. State v. Forsha, 88 S. W. 746, 751, Jose Printing & Publishing Co., 38 Pac. 903, 190 Mo. 296, 4 L. R, A. (N. S.) 576.

105 Cal. 284, 45 Am. St. Rep. 40). Where the court at the request of the

“‘Malice' is presumed from the making jury in a homicide case, returning for further by one person of derogatory statements with instructions, read a definition of “malice” in reference to another in regard to his compea law book as not necessarily hatred or intency or fitness for his trade or profession, will, but as an intentional doing of an un- and such derogatory language is slanderous lawful act, and that malice, as an ingredient per se.” Vial v. Larson, 109 N. W. 1007, 132 of murder, was the killing of a human being Iowa, 208 (citing Newell, Slander & Libel [20 without justification, excuse, or extenuation, Ed.) 182, 393). and then stated that malice, as an ingredient Malice, as used in cases of slander and of murder, did not necessarily mean hatred or libel, does not necessarily imply actual evil ill will, but was the unlawful and willful kill- intent, but rather the want or absence of ing of a human being without any legal ex any legal excuse for the speaking or publicuse or justification, the definition adopted by cation of the injurious words. Where slanthe court was proper, and the definition read derous words are actionable per se, malice is from the law book was not calculated to con- presumed. McDonald v. Nugent, 98 N. W. vey to the jury the impression that it was 506, 508, 122 Iowa, 651. adopted as a part of the definition requested. Coates v. State, 56 South. 6, 8, 1 Ala. App. 35.

Where words are spoken which are slan

derous per se, malice is presumed; but the The "malice" essential to convict of mur- malice which is thus presumed is known as der may be ascertained from previous threats legal malice, as distinguished from actual or and measures taken in preparation, and it express malice, or malice in fact. In an acmay also arise suddenly and be implied from tion for slander, the absence of actual malice circumstances, as from the intentional use at will not defeat the action, and the party inthe outset of a deadly weapon. Brown v. jured may recover his actual damages; but State, 54 South. 305, 98 Miss. 786, 34 L. R. A. where actual malice is charged in a com(N. S.) 811.

plaint, and more than compensatory dam“Malice" essential to constitute murder, ages are claimed for the injury, the actual as distinguished from manslaughter, includes motive or intent with which the publication all those states of the mind in which a homi- was made becomes an important fact from cide is committed without legal justification, which to determine the amount of damages extenuation, or excuse, and where an unlaw- to be awarded. Wrege v. Jones, 100 N. W. ful homicide is shown to have been commit- 705, 707, 13 N. D. 267, 112 Am. St. Rep. 679, ted, and its attending circumstances disclose 3 Ann. Cas. 482. nothing to mitigate, extenuate, or excuse the "The term 'malice,' as employed in the act, “malice" on the part of the slayer is definition of libel per se, is often misunderpresumed. State v. Marx, 60 Atl. 690, 692, stood by the general reader, and is sometimes 78 Conn. 18.

misapprehended by lawyers. It does not

necessarily mean personal hatred or in will In libel and slander

toward the person at whom the libel is di"Malice" in the law of slander is used in rected. Legal malice in the publishing of a a popular sense. Hubbard v. Allyn, 86 N. E. libel is not inconsistent with honesty of pur356, 359, 200 Mass. 166, 22 L. R. A. (N. S.) pose and good motive. * * * In other 730.

words, malice is the want of legal excuse for

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an act done to the injury of another. Who- , tory damages which the party injured may ever gives currency to libelous matter (not seek. It is important only when a claim for protected as being privileged) must be pre- exemplary damages is to be considered." pared to prove its truth, if he would avoid Post Pub. Co. v. Butler, 137 Fed. 723, 726, liability to the party injured." Morse v. 71 C. C. A. 309 (quoting and adopting definiTimes-Republican Printing Co., 100 N. W. tion given in Palmer v. Mahen, 120 Fed. 867, 871, 124 Iowa, 707.

737, 741, 57 0. C. A. 41, 45). Where, in libel for newspaper articles, "By 'legal malice,' as explained by Baysome of which did not refer to plaintiff, and ley, J., in Bromage v. Prosser, 4 B. & C. 255 some of which were not libelous per se, there (E. O. L. R. vol. 10), is meant no more than was no averment of extrinsic facts that the the wrongful intention which the law always articles referred to plaintiff or any innuendo presumes as accompanying a wrongful act, from which it could be inferred that they without any proof of malice in fact. charged plaintiff with such conduct as to ren- In a legal sense, any act done willfully and der it libelous per se, an instruction that purposely to the prejudice and injury of an"malice" means the intentional doing of a other, which is unlawful, is, as against that wrongful act without excuse, and that if the person, malicious. It is not necessary, to articles published were libelous in whole or render an act malicious, that the party be in part, and were published concerning plain- actuated by a feeling of hatred or ill will tiff, and were not true, the law presumed towards the individual, or that he entertain that they were published maliciously, and it and pursue any general bad purpose or dewas not necessary to prove any malice to sign. On the contrary, he may be actuated warrant a verdict for plaintiff, was erro- by a general good purpose, and have a real neous, because it did not confine the presump- and sincere design to bring about a reformation of malice to the articles which were tion of manners; but if, in pursuing that delibelous per se. Flowers v. Smith, 112 S. sign, he willfully inflicts a wrong on others, W. 499, 509, 214 Mo. 98 (citing and adopting which is not warranted by law, such act is Mitchell v. Bradstreet Co., 22 S. W. 362, 116 malicious.” Star Pub. Co. v. Donahoe (Del.) Mo. loc. cit. 240, 20 L. R. A. 138, 38 Am..St. 58 Atl. 513, 517, 65 L. R. A. 980 (quoting and Rep. 592).

adopting definition in Commonwealth An averment of "malice,” in an action Snelling (Mass.) 15 Pick. 340). for libel, is not equivalent to a charge that The kind of "malice" which "overcomes defendant wrote the libel knowing it was and destroys the privileges is, of course, untrue. Dickinson v. Hathaway, 48 South. quite distinct from that which the law, in 136, 137, 122 La. 644, 21 L. R. A. (N. S.) 33. the first instance, imputes with respect to

"The unprivileged publication in writing every defamatory charge, irrespective of moor print of a false charge that another is tive. It has been defined to be an 'indirect guilty of a crime, or of a false charge which and wicked motive which induces the detends to expose another to public hatred or fendant to defame the plaintiff.'" Denver contempt, entitles the person thus defamed Public Warehouse Co. v. Holloway, 83 Pac. to recover of the publisher full compensa- 131, 133, 34 Colo. 432, 3 L. R. A. (N. S.) 696, tion in damages for all the injury to his 114 Am. St. Rep. 171, 7 Ann. Cas. 840 (quotreputation, business, and feelings which the ing and adopting Hemmens v. Nelson, 34 defamatory publication caused. A written N. E. 342, 138 N. Y. 524, 20 L. R. A. 440; or printed article of this character is libel- Odgers, L. & S. 267). ous in itself. From its publication the con

Pen. Code, $ 242, defines criminal libel clusive presumption of actual damages to its victim, and of 'legal malice' (that is to vides that a publication having such tend

as a malicious publication, section 244 prosay, of 'an act done wrongfully without legal justification or excuse'), at once arises. The ency is deemed malicious if no justification fact that the publisher was without malice,

or excuse is shown, and section 718, subd. 3, in the popular acceptation of that term (that provides that the terms “malice” and “mais to say, without 111 will, bad motive, hatred, design to annoy or injure another.

licious" each import an evil intent, wish, or

Held, or intent to injure his victim), constitutes no defense to the latter's claim for compensa- inal libel; the evil intent of its agents who

that a corporation may be convicted of crimtory damages, and no evidence to mitigate or reduce their amount, because the actual published the libel being attributed to it. damages to the party libeled are the same 135 App. Div. 517.

People v. Star Co., 120 N. Y. Supp. 498, 500, whether they are inflicted by the publisher with a good or an evil intent, and the victim Civ. Code, $ 47, defines a "privileged is as clearly entitled to full compensation for communication” as one without malice, to a a wrong inflicted with a laudable motive, person interested therein, by one who is althrough mistake or inadvertence, as for one so interested; one who stands in such relaperpetrated with a diabolical purpose or in- tion to the person interested as to afford a tent. The intent or purpose with which such reasonable ground for supposing the motive a publication is made is immaterial in the innocent, or who is requested by the person trial of the claim for the actual or compensa- ' interested to give the information; and sec

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