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tion 48 declares that the "malice" so referred In malicious prosecution to is not inferred from the communication "Malice" is a wrongful motive which or publication. Held, that "malice" as used prompts a wrongful act. The institution of in section 47 meant malice in fact, or a libel criminal proceedings with any other motive published with an actual, malicious intent. than that of bringing a guilty person to jusDavis v. Hearst, 116 Pac. 530, 540, 160 Cal. tice is a malicious prosecution. Rulison v. 143.

Collins, 82 S. W. 748, 750, 5 Ind. T. 282 "By 'malice' is not meant, necessarily, (quoting and adopting definition in Addison, spite or ill will, but it is also meant the do- Torts [Wood's Ed.] $ 853; Johns v. Marsh, ing of a wrongful act intentionally, without 52 Md. 323; Garvey v. Wayson, 42 Md. 178; just cause or excuse; and if an article com- Harpham v. Whitney, 77 Ill. 32). plained of was published of and concerning

The malice required to be shown is the plaintiff, and was not true, and was a libel wrongful motive prompting the prosecution, on him, then the law presumes it was pub- and may be established by proof of any lished maliciously.

Only legal mal-motive other than that of bringing a guilty ice is exacted, and on analysis this sinks in-party to justice. Moneyweight Scale Co. v. to a myth or fiction, for so much malice as McCormick, 72 Atl. 537, 540, 109 Md. 170. is necessary to afford compensation for actual damages is inferred from the fact that a definition of malice as a “disposition to do

In an action for malicious prosecution, a false writing was published concerning plaintiff, although in truth the publisher felt no the person prosecuted a wrong without legal

excuse" ill will, and believed he was telling the truth.

was not prejudicial to plaintiff.

Gaither y. Carpenter, 55 S. E. 625, 626, 143 This result eliminates malice from actions

N. C. 240. for libel, as a practical factor, save as a reason for awarding more than compensative The malice essential to sustain an action damages or overcoming the defense of priv- for malicious prosecution, does not mean perileged communication." What is meant by sonal ill will, but a wrongful act, knowingly "malice" in these actions is that the publi- and intentionally done, without just cause, cation of the false matter was without legal constitutes malice. Stanford v. A. F. Mesexcuse, or, to present the rule in a perfectly sick Grocery Co., 55 S. E. 815, 817, 143 N. definite and intelligible form, that it was un- C. 419. privileged. If it was a privileged communication, no malice is inferred from the publi- dictiveness, but it imports bad faith in a

"Malice” need not indicate anger or vin. cation, and the case fails, unless malice is otherwise proved, and where, through a mis- malicious prosecution, or the want of sincere take as to identity, plaintiff's picture was

belief that the facts and circumstances juspublished in connection with an acticle which tify the prosecution. Griswold v. Griswold, was false and libelous as to him, it was ma

77 Pac. 672, 673, 143 Cal. 617. licious. Farley v. Evening Chronicle Pub, The fact that an action was commenced Co., 87 S. W. 565, 568, 113 Mo. App. 216.

and prosecuted without probable cause may

be considered by the jury on the question of In malicious mischief

malice. Actual malicious purpose or personal Malice, as an element of malicious mis- ill will is not essential to constitute the legal chief, is not restricted to ill will or revenge malice which must be shown to support an against the owner or possessor of the prop action for malicious prosecution. The malice erty injured; but a willful or wanton injury required to support the action may be inferto property, under circumstances indicating red by the jury from the want of probable a malignant spirit or mischief, is sufficient

Connelly v. White, 98 N. W. 144, 145, to constitute malicious mischief, and such 122 Iowa, 391. malice may be either expressed or implied. State v. Wright (Del.) 79 Atl. 399, 400, 2 "Malice," in law, is the intentional doing Boyce, 393.

of a wrongful act without just cause

It is not sufficient, to sustain an On a trial for malicious mischief in vio- action for malicious prosecution, to prove lation of Rev. Pen. Code, § 712, an instruc-that the affidavit upon which the arrest was tion that such acts in relation to the property made was false. It must also appear that of another as evince a disposition of wan- the affiant either knows it was false, or did ton deviltry and reckless disregard of the not have reasonable and probable cause to rights and property of another are, in law, beliere it to be true. Izzo v. Viscount, 64 malice, together with the charge that to jus- Atl. 953, 954, 74 N. J. Law, 65 (quoting and tify a conviction the jury must find not only adopting McFadden v. Lane, 60 Atl. 367, 71 that accused willfully and intentionally, but

N. J. Law, 630). that he wantonly and in a spirit of revenge, injured the property of another, sufficiently "Malice," in its legal sense, as used in describes “malice," as defined by section 811 actions for malicious prosecution, “is not to as importing a wish to annoy or injure an- be considered in the sense of spite or hatred other. State v. Tarlton, 118 N. W. 706, 708, against an individual, but of malus animus, 22 S. D. 495.

and as denoting that the party is actuated




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by improper and indirect motives,” or, as | prosecution, that to constitute malice it defined by Newell, Mal. Pros. c. 71, § 7, p. would not be necessary to show ill will or 239, it means "a general wickedness of in- hatred to the person injured, but that malice tent; a depraved inclination to do harm, or may be inferred from any offensive act, or to disregard the rights or safety of mankind any act of an offensive nature, which would generally." Campbell y. Baltimore & O. R. show disregard of the person injured and Co., 55 Atl. 532, 97 Md. 341 (quoting Johns a violation of proper consideration of him, v. Marsh, 52 Md. 323).

was too broad, and made the definition turn “Legal malice,” as distinguished from rather on whether the act was offensive to "express" or "actual malice," and which is the person injured than on the intent, pursufficient to support an action for maliciously pose, or state of mind of the actor. McPhersuing out process, but not to support an

son v. Chandler, 72 S. E. 948, 949, 137 Ga.

129. award of punitive damages, consists in a wrongful act intentionally done, without just In an action for malicious prosecution, and lawful cause or excuse. Wright v. Har held, that it was proper to instruct the jury ris, 76 S. E. 489, 492, 160 N. C. 542.

that: “'Malice' in law means an act done In an action for malicious prosecution,' wrongfully and willfully without reasonable an instruction that: “ 'Malice' is defined as

or probable cause, and not necessarily an any indirect motive of wrong;

act done from ill feeling or spite. or a deand, in the legal sense, any unlawful act, sire to injure another. It is enough if dewhich is done willfully and purposely to the fendant be actuated by improper or sinister injury of another, is, as against that person,


If the purpose of the malicious; and by malice is meant not the arrest was anything else than to vindicate act, but the motive which prompts the act. the law and punish crime, then they might It consists of a bad motive, or such reckless infer that defendant had a malicious motive disregard of the rights of others as to show in causing the same.” Hackler v. Miller, 114 evil intent. It is an action based upon an

N. W. 274, 276, 79 Neb. 209. improper motive, and does not necessarily Negligence distinguished presuppose personal hatred, ill will, or re- The doing of an act without that ordivenge. The improper motive or want of nary prudence and discretion which persons proper motive inferable from a wrongful of mature mind and sound judgment are act, based upon no reasonable ground, con- presumed to have constitutes “negligence," stitutes of itself all the malice deemed es- but will not alone warrant an inference of sential in law to the maintenance of the "malice." Malice is distinguishable from action. The malice necessary to be shown mere negligence in that it arises from some in order to maintain this action is not nec purpose, while negligence arises from abessarily revenge or other base and malignant sence of purpose. The characteristic of negpassion; whatever is done willfully and ligence is inadvertence or an absence of an purposely, if it be at the same time wrong intent to injure. This does not imply that and unlawful, and that known to the party, the act was done involuntarily or is, in legal contemplation, malice. If, how sciously, but merely that the person doing ever, the accused is in fact guilty of the it was not conscious that the act constioffense charged, that would be a complete tuted a want of reasonable care. Jenkins defense in this action, and it would be im

V. Gilligan, 108 N. W. 237, 238, 131 Iowa, material whether the proceedings complained 176, 9 L. R. A. (N. S.) 1087 (citing Pickens of were malicious not”-was correct. v. South Carolina & G. R. Co., 32 S. E. Miles v. Walker, 92 N. W. 1014, 1016, 66 567, 54 S. C. 498). Neb. 728.

Lack of probable cause distinguished "Malice," as an element of malicious

“ 'Malice' and 'lack of probable cause' prosecution, does not necessarily mean anger,

are not convertible terms. Neither follows wrath, or vindictiveness, but, while any such

as a legal presumption from the other. The ill feeling may constitute malice, it need be jury may infer malice as a fact from proof of no more than the antithesis of bona fides, and want of probable cause; but they cannot hence particular malice or malicious or infer a lack of probable cause from proof of wrongful purpose, in the sense of personal ill malice. Both must be proved. Honesty of will or malevolence existing toward the per

purpose precludes malice. Malice is any imson prosecuted by the prosecutor is not re

proper or sinister motive for instituting the quired. Downing v. Stone, 68 S. E. 9, 10, suit. It need not spring from any spirit of 152 N. C. 525, 136 Am. St. Rep. 841, 21 Ann. malevolence, or be prompted by any malig

nant passion." While many authorities hold Under Civ. Code 1910, $ 4451, providing that probable cause is a reasonable ground of that malice may consist in personal spite, suspicion supported by circumstances suffior in a general disregard of the right con- ciently strong in themselves to warrant a sideration of mankind directed by chance cautious person in the belief that there were against the individual injured, a charge, in grounds for the attachment, the better rule an action for illegal arrest and malicious and the one approved is that belief and rea



Cas. 753.

sonable grounds must unite to constituteshown for the existence of malice, yet it probable cause. However, the distinction must be aforethought; that is, it must be re may be more metaphysical than real. Foster lated to the unlawful act in the nature of v. Pitts, 38 S. W. 1114, 63 Ark. 387 (citing to cause and effect. An indictment for murder the quotation Lemay v. Williams, 32 Ark. in the second degree, charging that defend166; Cooley, Torts, p. 185; Spengler v. Da- ant "unlawfully and with malice aforethought vy, 15 Grat. (56 Va.) 381; Burkhart v. Jen- did, etc.," was objectionable for failure to nings, 2 W. Va. 242; Commonwealth v. Snell- charge that the act was done with "malice ing, 15 Pick. [32 Mass.] 337; Mitchell v. Wall, aforethought.” Etheridge v. State, 37 South. 111 Mass. 492; Stewart v. Sonneborn, 98 U. 337, 141 Ala. 29. S. 187, 25 L. Ed. 116; Williams v. Hunter, 14

The phrase "malice aforethought" was Am. Dec. 597, note; Bozeman v. Shaw, 37 properly defined as “the voluntary and intenArk. 160; Frowman v. Smith, 12 Am. Dec. tional doing of an unlawful act, with the pur265, notes; and citing to the rule approved pose, means, and ability to accomplish the King v. Colvin, 11 R. I. 582, 584; Newell, reasonable and probable consequences of it, Mal. Pros. p. 252).

done in a manner showing a heart regardless

of social duty and fatally bent on mischief, MALICE AFORETHOUGHT

by one of sound mind and discretion, the eviAs applied to murder, "malice afore- dence of which is inferred from acts committhought” is a condition of the mind which ted or words spoken.” Barr v. State, 120 S. shows a heart regardless of social duty and W. 422, 56 Tex. Cr. R. 372. fatally bent on mischief, the existence of which is inferred from acts done or words cide to have been committed "unlawfully, and

A charge in question requiring the homispoken. Connell v. State, 81 S. W. 746, 747, with a mind which shows a heart regardless 46 Tex. Cr. R. 259.

of social duty and fatally bent on mischief, The term “malice aforethought" involved the existence of which may be inferred from in second-degree murder, within Code, $ 4727, acts committed or words spoken and in the providing that whoever kills any human be perpetration of robbery, and with ‘malice ing with malice aforethought is guilty of aforethought,'” etc., embraces sufficiently the murder, does not necessarily require an in- definitions of "malice aforethought.” Jones tent to murder, and may be implied where v. State, 96 S. W. 930, 931, 50 Tex. Cr. R. there is no intent to kill, such as an intent 329 (citing Martinez v. State, 16 S. W. 767, to commit a felony from which death results. 30 Tex. App. 129, 28 Am. St. Rep. 895; HedState v. Gibbons, 120 N. W. 474, 175, 142 rick v. State, 51 S. W. 252, 40 Tex. Cr. R. Iowa, 96.

532; Rupe v. State, 61 S. W. 929, 42 Tex. Cr.

R. 477). Under Code, $ 4728, providing that all murder perpetrated by means of poison is “Malice aforethought means a thing murder in the first degree, the administration done with a wicked and corrupt motive. It of poison to another unlawfully, and with is not confined to anger, hatred, and revenge bad intent, constitutes malice aforethought, by one against another, although it evidences without a specific intent to kill; and hence a thing done through anger, hatred, or re an instruction that, if defendant, with bad venge. It also evidences any other unjustiintent, caused poison to be taken by deceased, fiable motive with which the act is done. which caused her death, he was guilty of Hence malice is not confined to ill will which murder in the first degree, otherwise he was one individual holds toward another, but it not guilty, was not objectionable on the the is intended to denote any action flowing from ory that such act might constitute man- a wicked and corrupt motive. A thing done

slaughter. State v. Thomas, 109 N. W. 900, with a wicked mind, when the act has been · 902, 135 Iowa, 717.

attended with such circumstances as evince The use of the words “malice of fore- plain indications of a heart which regards thought” in place of the words "malice afore not its social duty, and which is fatally bent

on mischief, is done with malice." State v. thought," as provided by the form set out in the Code, does not impair the validity of the Wetter, 83 Pac. 341, 346, 11 Idaho, 433. indictment as charging murder in the first de- The mere fact that a killing has been gree, under Code 1907, § 7136, declaring the accomplished by means of poison does not use of words conveying the same meaning as show “malice aforethought," within the defthose in the statute sufficient. Flowers v. inition of murder as the unlawful killing of State, 56 South. 98, 100, 2 Ala. App. 65. a human being with “malice aforethought."

The malice which is an essential element State v. Phinney, 89 Pac. 634, 13 Idaho, 307, in the offense of murder has always been 12 L. R. A. (N. S.) 935, 12 Ann. Cas. 1079. described as “malice aforethought.” It is "Malice," within the definition of murder descriptive of the state of mind of the slayer in Pen. Code, $ 187, as the unlawful killing of preceding and at the instant of the unlawful a human being with “malice aforethought,” act of killing. Although no definite or appre may be express or implied. People v. Frank, ciable space of time in law is required to be 83 Pac. 578, 579, 2 Cal. App. 283.

Deliberation or premeditation implied, a predetermination to do the act of killing

"Malice aforethought” means that the without legal excuse, and it is immaterial act was done with malice and premeditation. at what time before the killing such a deState v. Vaughan, 98 S. W. 2, 5, 200 Mo. 1. termination was formed. Ball v. Common.

The phrase "malice aforethought” means wealth, 101 S. W. 956, 960, 125 Ky. 601. a predetermination to do the act of killing On a trial for murder, it is proper to adwithout legal excuse, and it is immaterial vise the jury that “malice aforethought" how suddenly or recently before the killing means a predetermination to do the act of such determination was formed. Hill v. killing without a legal excuse, and it is imCommonwealth (Ky.) 91 S. W. 1123, 1124 material as to what time before the killing (quoting and adopting the definition in Clark such a determination was formed. Burns v. Commonwealth (Ky.) 63 S. W. 740).

v. Commonwealth, 124 S. W. 409, 412, 136 "Malice aforethought means in law

Ky. 468. that it has been thought of beforehand, so On a trial for murder, the court should that, to constitute murder, the evidence must instruct that the words "malice aforeshow that the defendant thought of it be thought” mean a predetermination to do the forehand, but as to the length of time it is act of killing without legal excuse, and that immaterial.” Green v. United States, 104 S. it is immaterial how suddenly or recently W. 1159, 1160, 7 Ind. T. 733.

before the killing such determination formed. “Express malice aforethought” is shown Ewing v. Commonwealth, 111 S. W. 352, 355, where one person kills another with a sedate, 129 Ky. 237. deliberate mind and formed design. State v. An instruction that the words "with malWatson (Del.) 82 Atl. 1086, 1087.

ice," as used in the instruction, denoted a "Malice aforethought,” as it exists in wrongful act intentionally done, and that the murder, is a deliberate and formed design term “aforethought,” as used, meant a predeto kill, which may be manifested by a lying termination to do the act, however suddenly in wait, antecedent threats, former grudge, or recently formed before the act was done, ill will, spite, hatred, or any circumstances sufficiently defined “malice aforethought,” esthat show the accused's intent toward his pecially when taken in connection with anvictim at the time of the killing. State v. other instruction defining "feloniously" as Primrose (Del.) 77 Atl. 717, 719, 2 Boyce, 164. meaning to proceed from an evil heart or purIn a prosecution for murder, it was er-pose, done with the deliberate intention to

commit a crime, though the definition of ror, in attempting to define "malice aforethought,” to charge the jury: "If the thought act be done "without legal excuse." Pot

malice aforethought did not require that the came to the mind (of the defendant), 'I will ter v. Commonwealth, 134 S. W. 462, 142 Ky. kill,' and he did kill immediately after that,

378. it is thought of beforehand; that is, ‘malice aforethought'"-since it made the conscious

The phrase "malice aforethought” in an act of the defendant malicious, regardless instruction declaring that, where the act of of the fact whether he was acting in self-de killing is done willfully, feloniously, and with fense or otherwise. Green v. United States, malice aforethought, accused is guilty of mur101 Pac. 112, 114, 2 Okl, Cr. 55.

der, means a predetermination to do the act

of killing without legal excuse, and it is imTo constitute an "assault with intent to material how suddenly or recently before the murder" within Gen. St. 1146, the assault

killing such determination

formed. must be made with malice aforethought, and Combs v. Commonwealth (Ky.) 112 S. W. 658, when an assault is actuated by malice, no

660. matter how short a time it existed previous

Rev. Laws, c. 207, § 1, declares that murto the forming of the intent to kill, the malice

der committed with deliberately premeditated is “malice aforethought." State v. McGuire, 80 Atl. 761, 765, 84 Conn, 470, 38 L. R. A.

malice aforethought, or in the commission (N. S.) 1045.

or attempt to commit any crime punishable

with imprisonment for life, or committed An instruction, defining "malice afore- with extreme atrocity or cruelty, is murder in thought” as a predetermination to do a the first degree, and punishable with death. wrongful act without lawful excuse, and in a prosecution for such offense, the court that it was immaterial how suddenly or how charged that the words “deliberately pre recently such predetermination was formed meditated malice aforethought” meant simply in the mind, was not objectionable as includ-thought upon, resolved upon beforehand, not ing a predetermination to do a wrongful act a thing done suddenly, not a thing that comes in general without requiring that the wrong into the mind of a sudden, and is done before ful act be to kill decedent. Howard v. Com- there is time to think about it, but a thing monwealth, 139 S. W. 844, 845, 144 Ky. 644. thought upon or planned some time before, or

The phrase "malice aforethought," as thought upon long enough before the act is used in an indictment charging willful mur- done so that it can reasonably be said to have der and in the instruction defining willful become a purpose of the mind," that “no parmurder and voluntary manslaughter, means 'ticular length of time is necessary” and il


lustrated the same by stating that if a rob- statute defining mayhem. Green v. State, 44 ber with a dirk or pistol turns a corner and South. 194, 195, 151 Ala. 14, 125 Am. St. Rep. meets a bank messenger with a roll of bills, 17, 15 Ann. Cas. 81. and determines in one moment to get it, and

"Maliciously" and "malice aforethought" the next shoots or stabs the messenger dead, do not mean the same thing. Malice comtakes the package, and flees, his malice was prehends ill will, a wickedness of disposition, deliberately premeditated, though it occupied cruelty, recklessness, a mind regardless of only a few seconds to accomplish. Held, social duty, etc., while “malice aforethought" that both the definition and illustration were

or "premeditated" design has a more intense proper. Commonwealth v. Tucker, 76 N. E. meaning. They comprehend, not only what is 127, 138, 140, 141, 189 Mass. 457, 7 L. R. A. included within the term “malice,” but in ad(N. S.) 1056.

dition thereto mean "premeditated malice." An instruction, in a prosecution for Butt v. State, 47 South. 781, 783, 94 Miss. 669 murder, that "malice aforethought” means (citing 5 Words and Phrases, p. 4304; 1 with malice and premeditation is correct. Bish. Cr. Law [8th Ed.) p. 261; Patterson v. State v. McCarver, 92 S. W. 684, 686, 194 State, 66 Ind. 185; Tutt v. Commonwealth, Mo. 717.

46 S. W. 675, 104 Ky. 299; State v. Green, 7 “Malice aforethought,” as it exists in South. 793, 42 La. Ann. 644; State v. Curtis, murder, is a deliberate and formed design to 70 Mo. 594; Cravey v. State, 35 S. W. 658, kill, which may be manifested by a lying in 36 Tex. Cr. R. 90, 61 Am. St. Rep. 833). wait, antecedent threats, former grudge, ill MALICE IN LAW OR FACT will, spite, hatred, or any circumstances that show the accused's intent toward his victim

Malice in law is not personal hate or ill at the time of the killing. State v. Primrose, will of one person towards another. It refers (Del.) 77 Atl. 717, 719, 2 Boyce, 164.

to that state of mind which is reckless of law

and the legal rights of the citizens in a perIll will implied

son's conduct towards that citizen. Foley v. “Malice aforethought," either expressed Northrup, 105 S. W. 229, 230, 47 Tex. Civ. or implied, is manifested by the doing of an App. 277. unlawful and felonious act intentionally and

“Malice in fact" is a spiteful or rancorwithout legal cause or excuse. It does not

ous disposition which causes an act to be imply a pre-existing hatred or enmity toward done for mischief, and is always a question of the individual injured. People v. Balkwell, fact for the jury. Walker v. Chanslor, 94 76 Pac. 1017, 1019, 143 Cal. 259.

Pac. 606, 608, 153 Cal. 118, 17 L. R. A. (N. The intent essential to constitute an “as- S.) 455, 126 Am. St. Rep. 61. sault with intent to murder" relates to the

In an action for slander, "malice in condition of the mind of accused, and it may law" may be implied from facts proved, while arise from improper motives, as from hatred malice in fact” is actual malice. Davies v. toward the person assaulted, or from an evil Starrett, 55 Atl. 516, 518, 97 Me. 568. design in general, a wanton and depraved spirit, a mind devoid of social duty and fa

"Malice in fact," in common acceptation, tally bent on mischief. To constitute an "as- means ill will against a person, while malice sault with intent to murder” within Gen. St. in law is a wrong done against a person in$ 1146, the assault must be made with in- tentionally. An instruction, in an action for tent to kill, and when an assault is actuated malicious prosecution, that there are two by malice, no matter how short a time it ex. kinds of malice, malice in fact and malice in isted previous to the forming of the intent law, that the former means ill will against to kill, the assault committed is assault a person, and the latter means the doing of a with intent to murder. State v. McGuire, 80 wrongful act intentionally, and that 'if de Atl. 761, 84 Conn. 470, 38 L. R. A. (N. S.) fendants or either of them were moved by 1045.

ill will against plaintiff, or the prosecution

of him was wrongfully caused or maintained “Malice aforethought” is manifested by by them, the jury should find that the prosethe doing of an unlawful or felonious act in- cution was malicious, was not erroneous, as tentionally and without legal cause or excuse permitting a recovery if the prosecution was It does not imply a pre-existing hatred or wrongfully maintained, where the petition enmity towards the individual injured. Peo claimed damages for the malicious continuple v. Fallon, 86 Pac. 689, 690, 149 Cal. 287.

ance of the prosecution. Carp v. Queen Ins. Maliciously distinguished

Co., 101 S. W. 78, 97, 203 Mo. 295. In a prosecution for mayhem, a request "Malice," as usually understood, has its for a charge that before the accused could be foundation in ill will, and is evidenced by an convicted, the jury must be satisfied beyond attempt wrongfully to vex, injure, or annoy a reasonable doubt that the act was done un another. This is “malice in fact," and is lawfuly, intentionally, and with malice afore- that referred to in Pen. Code, $ 7, subd. 4, thought, was properly refused, since the term declaring that the words “malice" and "ma. "malice aforethought" is not necessarily syn- liciously” import a wish to vex, annoy, or inonymous with "maliciously,” as used by the jure another person. There is another sort of

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