« SebelumnyaLanjutkan »
and without authority. "Malicious prosecu- / after it issues, the latter is grounded on a tion” is procuring the arrest or prosecution malicious suing out of the process without of another under lawful process, but from probable cause. Brantley v. Rhodes-Haverty malicious motives and without probable cause. Furniture Co., 62 S. E. 222, 225, 131 Ga. 276. The provocation, motive, and good faith of the defendant, in an action for false impris
MALICIOUS SEVERANCE FROM onment, constitute no material element in
FREEHOLD the case, and can be considered only where The words "malicious severance from the punitive or exemplary damages are asked, freehold,” in Kirby's Dig. $ 1901, prohibiting and then only as affecting the measure of the malicious severance from the freehold of such damages. On the other hand, malice another of anything attached thereto, do not and want of probable cause are the gist of cover the act of a tenant in removing from the action for malicious prosecution. With the outside of a window a for rent sign placout allegation and proof of both, the actioned there by the landlord, but the words refer will fail. No one can recover damages for a to the severance of things attached to the legal arrest and conviction. Therefore, in freehold as a part thereof, such as produce cases of malicious prosecution, it becomes of the soil, timber, structures, or fixtures necessary to await the final determination of thereto. Whipple v. Gorsuch, 101 S. W. 735, the action. But the same principle does not 737, 82 Ark. 252, 10 L. R. A. (N. S.) 1133, 12 apply to an action for false imprisonment, Ann. Cas. 38. as the form of action is based upon an illegal arrest, and no matter ex post facto can le- MALICIOUS TRESPASS galize an act which was illegal at the time it See Injury and Malicious Trespass to was done. From this it will be seen that Property. one of the essential elements of a complaint “Malicious trespass" or injury to propfor malicious prosecution is that the pro-erty has been defined by the Legislature to ceeding upon which it is based has finally mean a wrongful, intentional, and willful interminated in favor of the plaintiff, while jury, and is not confined to cases where the it is equally apparent that this is not a pec- offender is actuated by an evil animus against essary or proper allegation in an action for the owner of the property or the property false imprisonment. Neves v. Costa, 89 Pac. itself (Rev. St. 1899, § 1989, Ann. St. 1906, p. 860, 863, 5 Cal. App. 111.
1332). State v. McKee, 104 S. W. 486, 487, Malicious abuse of process distin- 126 Mo. App. 524. guished
Crimes Act, $ 107 (Gen. St. 1901, $ 2100), An action for "malicious prosecution” defining “malicious trespass," reads: "Every is distinguished from one for abuse of pro- person who shall willfully, unlawfully and cess in that, in the former, malice, want of maliciously break, destroy or injure the door probable cause, and termination of the form or window of any dwelling house, shop, store er proceedings must be shown, and in the or other house or building, or sever therelatter none of these, but an ulterior purpose from or from any gate, fence or inclosure, or and an act in the use of the process not any part thereof, any material of which it is proper in the regular prosecution of the pro- formed, or sever from the freehold any prodceeding, must be shown. Pittsburg, J., E. & uce thereof, or anything attached thereto, E. R. Co. v. Wakefield Hardware Co., 55 S. or shall pull down, injure or destroy any E. 422, 423, 143 N. C. 54 (citing Pittsburg, J., gate, post railing, or fence or any part thereE. & E. R. Co. v. Wakefield Hardware Co., 50 of, or cut down, lop, girdle or otherwise inS. E. 571, 138 N. C. 174, 3 Ann. Cas. 720; 1 jure or destroy any fruit or ornamental or Cooley, Torts [3d Ed.] 354; 1 Jaggard, Torts, shade trees, being the property of another, $ 203; Hale, Torts, $ 185; Mayer v. Walter, shall, on conviction, be adjudged guilty of 64 Pa. 283; Jackson v. American Telephone a misdemeanor.” State v. Boies, 74 Pac. 630, & Telegraph Co., 51 S. E. 1015, 139 N. C. 356, 68 Kan. 167, 1 Ann. Cas. 491. 70 L. R. A. 738); Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 50 S. E. 571, MALICIOUSLY 573, 138 N. C. 174, 3 Ann. Cas. 720.
"Maliciously" means and implies an inThere is a clear distinction between the tention to do an act which is wrongful, to malicious prosecution of an action so as to the detriment of another. State v. Van Pelt, interfere with another's property or business, 49 S. E. 177, 187, 136 N. C. 633, 68 L. R. A. and the malicious abuse of process, which is 760, 1 Ann. Cas. 495. the willful and wrongful use of the process
By the word “maliciously," as used in an itself, and does not require a termination indictment for slander by imputing to a woof the suit in which the process issued to be man a want of chastity, is meant that the available as a cause of action. Ludwick v. words must have been so uttered as to imply Penny, 73 S. E. 228, 231, 158 N. C. 104.
by defendant an evil intent or legal malice, The principal distinction between an ac- or without reasonable grounds for believing tion for malicious abuse of process and one that the words uttered were true. Rainwafor malicious prosecution is that, while the ter v. State, 81 S. W. 38, 39, 46 Tex. Cr. R. former lies for an improper use of process' 496.
Where, soon after a strike was declared, / "willfully,” and imports doing a harm mathe employer secured men to take the place levolently for the sake of the harm, as an end of the strikers, and has ever since had an in itself, and not as a means to some further adequate force, and is not taking any new end legitimately desired. Aikens v. Wisconmen, and of the eleven men who left the em- sin, 25 Sup. Ct. 3, 5, 195 U. S. 194, 49 L. Ed. ployment eight soon secured other employ- 154. ment in the same kind of work, and three
"The word 'maliciously' imports 'an inhave left the commonwealth, and the interna- tent to do a wrongful act,'" and its absence tional organization with which the strikers' from an accusation under Pen. Code, $ 415, labor union was affiliated ceased to aid their for disturbing the peace, is fully supplied by efforts any further, the strike was ended so the charge that defendant willfully and unthat thereafter driving a wagon through lawfully disturbed the peace by fighting. Lathe streets, bearing a placard announcing rue v. Davies, 97 Pac. 903, 904, 8 Cal. App. the existence of a strike, was manifestly 750. intended to injure the employer, and was
Where a statute provides that every perdone “maliciously” within the legal meaning
son who shall willfully and maliciously kill, of that word. M. Steinert & Sons Co. v. Tagen, 93 N. E. 584, 585, 207 Mass. 394, 32 maim, or disfigure horses, etc., shall be pun
ished, the word "maliciously" imports a crimi.' L. R. A. (N. S.) 1013.
nal motive intent, or purpose. Roberts v. Rev. St. 1898, 8 4053, defines "malice" United States, 126 Fed. 897, 903, 61 C. C. A. and "maliciously" as importing a wish to vex, 427 (citing Commonwealth v. Brooks, 9 Gray annoy, or injure another person, or an intent (75 Mass.] 303). to do a wrongful act. Section 4427 provides that every person who willfully, unlawfully,
"Maliciously,” as used in Acts 1897, p. and maliciously administers any poison to an 257, c. 106, making it a felony for any one animal, the property of another, is punish- to "maliciously" cut and remove timber, for able. Under such sections, the fact that the the purpose of marketing, from the lands of owner of a dog poisoned by defendant was
another without the owner's consent, does not unknown to defendant did not preclude a
mean actual malice toward the owner, but finding that the poison was administered ma- is used in the broad legal sense of criminal liciously. State v. Coleman, 82 Pac. 465, 466, intention to define that state of mind of a 29 Utah, 417.
person who does a wrongful act intentionally
or willfully and without legal justification Under a statute providing that every per- or excuse. The word “feloniously" fully covson who shall maliciously administer or
ers the meaning of “maliciously" as so used, cause to be administered or taken any de- and “feloniously,” as defined in the Century structive substance, with intent to cause Dictionary, means "with deliberate intent to death, shall be punished, etc., and who shall commit a wrongful act, the act being in law use or cause to be used any instrument with such as constitutes a crime of the class termthe intention to procure a miscarriage shall ed 'felonies,'” and in Webster's Dictionary, be imprisoned, etc., the word “maliciously” | "In a legal sense, done with the intent to is not applicable to the offense of abortion as commit a crime." In comparing the judicial therein defined. Johnson v. People, 80 Pac. definitions of the words “felonious" and "fe133, 135, 33 Colo. 224, 108 Am. St. Rep. 85.
loniously" in Words and Phrases Judicially “Under Pen. Code, art. 4, 8 7, defining the Defined, vol. 3, p. 2731 et seq., with the defiwords 'malice' and 'maliciously' as importing nition of the word “malicious,” in volume 5 & wish to vex, annoy, or injure another of the same work, at page 4307, it is found person, or an intent to do a wrongful act that the words are often construed to have established either by proof or presumption the same meaning, namely, "with criminal of law," where a defendant was on trial for intent," or "with intent to commit crime." assault in the first degree, the crime involved State v. Smith, 105 S. W. 68, 69, 70, 119 Tenn. a specific intent as the gist of the offense, 521. and it was error for the court to instruct In an action by an employé against a that, when an unlawful act is shown to have third party for wrongfully causing plaintiff's been deliberately committed for the purpose discharge in violation of contract, the declaof injuring another, it is presumed to have ration must show that defendant knew of the been committed with a malicious and guilty existence of such contract, and such fact intent, and the law presumes that a person cannot be inferred from an allegation that he intends the ordinary consequences of any “maliciously” caused plaintiff's discharge, voluntary act committed by him. State v. which means no more than he acted willfully Schaefer, 88 Pac. 792, 793, 35 Mont. 217. and intentionally. McGurk v. Cronenwett, The term "maliciously injuring," within
85 N. E. 576, 577, 199 Mass. 457, 19 L. R. A. Wis. St. 1898, 8 4466a, which imposes pun
(N. S.) 561. ishment or fine on any two or more persons "Maliciously" in the law means "intenwho shall combine for the purpose of will- tionally." It is not sufficient, to sustain an fully or “maliciously injuring" another, etc., action for malicious prosecution, to prove is intended to add something to the word that the affidavit upon which the arrest was made was false. It must also appear that the convicted, the jury must be satisfied beyond a affiant either knows it was false, or did not reasonable doubt that the act was done unhave reasonable and probable cause to be lawfully, intentionally, and with malice afore. lieve it to be true. Izzo v. Viscount, 64 Atl. thought, was properly refused, since the term 953, 954, 74 N. J. Law, 95.
“malice aforethought" is not necessarily The words "willfully," "unlawfully," synonymous with “maliciously," as used by "feloniously,” and “maliciously” import only the statute defining mayhem. Green v. State, that criminal intent which is the necessary 44 South. 194, 195, 151 Ala. 14, 125 Am. St. part of every felony, or other crime, but they Rep. 17, 15 Ann. Cas. 81. do not necessarily include the specific "pur- “Maliciously" and "malice aforethought" pose” to do the act which is an element of do not mean the same thing. Malice compre the crime charged, Whether the indictment hends ill will, a wickedness of disposition, is on a statute or at the common law, it cruelty, recklessness, a mind regardless of sois a rule universal and without exception cial duty, etc., while “malice aforethought” that every intent, like everything else, which or “premeditated" design has a more intense the law makes an element of the offense must meaning. They comprehend, not only what be alleged, for otherwise no prima facie case is included within the term “malice,” but in appears. Newby v. State, 105 N. W. 1099, addition thereto mean “premeditated malice.” 1100, 75 Neb. 33.
Brett v. State, 47 South. 781, 783, 94 Miss. 669 Under 1 Mills' Ann. St. 8$ 1424, 1425, pro- (citing 5 Words and Phrases, p. 4304; 1 Bish. viding that, if any person sball maliciously Cr. Law [8th Ed.) p. 261; Patterson v. State, drive cattle from their usual range, he shall 66 Ind. 185; Tutt v. Commonwealth, 46 S. W. be guilty of a misdemeanor and shall be lia- 675, 104 Ky. 299; State v. Green, 7 South. ble to the party injured, the word “ma- 793, 42 La. Ann. 644; State v. Curtis, 70 Mo. liciously" means wrongful act done intention- 594; Cravey v. State, 35 S. W. 658, 36 Tex. ally, without just cause or excuse. Richards Cr. R. 90, 61 Am. St. Rep. 833). 'v. Sanderson, 89 Pac. 769, 771, 39 Colo. 270, 121 Am. St. Rep. 167.
MALIGNANT PUSTULE Under Rev. St. 1899, providing that it shall not be necessary to show, in the trial
As disease, see Disease. of an offense for malicious injury to prop- "Malignant pustule" is the result of an erty specified in that article, that the of- infection from coming in contact with poisonfense was committed from malice conceived ous animal matter. Delaney v. Modern Acciagainst the owner of the property or against dent Club, 97 N. W. 91, 94, 121 Iowa, 528, 63 the animal or property itself, but, if the act L. R. A. 603 (citing Bacon v. United States was wrongfully, intentionally, and willfully Mut. Acc. Ass'n, 25 N. E. 399, 123 N. Y. 304, done, it may be inferred it was done mali- 9 L. R. A. 617, 20 Am. St. Rep. 748). ciously, the state is relieved from proving that malice was held toward either the owner
MALINGER or the property, but in both sections 1988 and 1989 (Ann. St. 1906, pp. 1332, 1333) gen- The term "malinger" means to feign or eral malice is retained as an element, and, induce sickness, and a malingerer is one who though it may be inferred from certain facts, feigns or induces illness to avoid service or it is not necessarily to be so inferred, and shirk duty, especially a soldier or sailor. the prohibited offense is not "willfully and Wells v. Missouri-Edison Electric Co., 84 S. maliciously' committed unless the animal is W. 204, 207, 108 Mo. App. 607. maimed, beaten, or tortured from an evil impulse springing from a state of mind render- MALPOSITION OF THE JAW ing the perpetrator indifferent to the sufferings of the animal and the wrongful quali
See Correction of Malposition of the ty of the act. State v. Prater, 109 S. W. 1047,
Jaw. 1049, 130 Mo. App. 348. Ill will implied
MALPRACTICE Rev. Codes 1905, § 9315, provides that
Attorney every person who maliciously injures, defac
Under Code Civ. Proc. $ 67, providing es, or destroys any real or personal property that any attorney guilty of any deceit, malnot his own is guilty of a misdemeanor. practice, crime, or misdemeanor shall be dislleld, that the word “maliciously,” as so used, barred, an attorney who, to secure his fee, should have a restricted meaning, and im- settles with a party against whom he was reports actual ill will or revenge and an intent tained to enforce claims, and assigns his conto annoy the owner of the property injured. tracts with his clients to enforce such claims, State v. Minor, 117 N. W. 528, 17 N. D. 454, 19 and notifies them to settle directly with the L. R. A. (N. S.) 273.
other party, agreeing to facilitate any settleAs with malice aforethought
ment that such other party may desire to In a prosecution for mayhem, a request make, is guilty of “malpractice.” In re Clark, for a charge that, before the accused could be 77 N. E. 1, 6, 184 N. Y. 222.
An attorney who persuades a client, who "Malt liquors" include nonintoxicating, cannot understand English, to repudiate a as well as intoxicating, liquors. Commonsettlement in an action and to verify a reply wealth v. Goodwin, 64 S. E. 54, 56, 109 Va. setting up the settlement, when the attorney 828. had no reasonable expectation of supporting The generic term "malt liquors" inthe pleading with proof, and before judgment cludes liquor containing any percentage of is rendered against his client brings a gar- alcohol as the product of malt brewing, nishment suit against the client, who does whether the product is intoxicating or not. not learn of the suit until judgment is taken La Follette v. Murray, 91 N. E. 294, 295, 81 against him, is guilty of "malpractice.” In Ohio St. 474. re Thatcher, 190 Fed. 969, 1010.
“Malt rose" is a beverage made to imitate Physician
lager beer, having the same general color, ** *Malpractice' is the bad, professional taste, and appearance, and containing from treatment of disease or bodily injuries, from .74 to 1.18 per cent. of alcohol. It is a ferreprehensible ignorance or carelessness or mented or malt liquor within liquor tax law with criminal intent.” Where a patient, be- (Laws 1897, p. 207, c. 312), regulating the fore an operation, is not suffering from a dis- sale of fermented or malt liquors. People v. location of the hip, and the physician diagno- Cox, 94 N. Y. Supp. 526, 529, 106 App. Div. ses the patient's trouble as a partial dislo- 299. cation and treats her for such dislocation,
The term “malt liquors," as used in Acts thereby causing great pain and permanent in- 1910 (Ex. Sess.) No. 4, to define the meaning jury, the physician is quilty of “malpractice." of the term “grog or tippling shop,” in prohiGrainger v. Still, 85 S. W. 1114, 1119, 187 bition districts, includes only malt liquors Mo.'197, 70 L. R. A. 49.
that are intoxicating. State v. Maroun, 55
South. 472, 473, 128 La. 829. MALT
"Malt liquors” are the product of a pro
cess by which grain is steeped in water to the MALT LIQUOR
point of germination, the starch being thus See Fermented and Malt Liquors; Sub- converted into saccharine matter, which is stitute for Malt Liquor.
kiln dried, then mixed with hops, and by a See, also, Spirituous Liquors.
further process of brewing made into a beverWhere a beverage contained no alcohol, age; porter, ale, beer, etc., being embraced preservatives, or saccharine, and was nonin- within the expression. Marks v. State, 48 toxicating, but did contain 5.73 per cent. malt, South. 864, 868, 159 Ala. 71, 133 Am. St. it was a “malt liquor," within Acts 1908, c.
Rep. 20. 115, $ 1, prohibiting the sale within the state The term "malt liquors," as used in the of any vinous, alcoholic, malt, intoxicating, provision of article 229 of the Constitution, or spirituous liquors. Purity Extract & Tonic which reads, “This restriction shall not apply Co. v. Lynch, 56 South. 316, 100 Miss. 650.
to dealers in distilled, alcoholic or malt liqKy. St. 1909, § 2557, making it unlawful, uors,” and whereby political corporations, after a local option election resulting in a throughout the state, are left free to impose vote against sale of "spirituous, vinous, or license taxes upon the dealers thus mentionmalt liquors," to sell any such liquors, is not, ed, without regard to the action or nonaction in view of prior judicial construction of the of the state in such cases, must be regarded words in prior statutes on the subject, violat- as applying to malt liquors which are, or may ed by sale of malt liquor containing less than be, used as beverages, and which are intoxi2 per cent. of alcohol, and nonintoxicating in cating, and as having no application to malt the largest quantity in which it may be liquors which are not, or may not be, so used, drunk. City of Bowling Green v. McMullen, and are not intoxicating. City of Shreveport 122 S. W. 823, 134 Ky. 742, 26 L. R. A. (N. S.) v. Smith, 57 South. 652, 653, 130 La. 126. 895.
Act Sept. 5, 1908 (Acts 1908, p. 1112), proThe words “malt liquor" are words in viding a revenue for the development and common and ordinary use and did not re- conduct of the penitentiary system, and to quire definition in a prosecution for selling buy farm lands and equipment as needed in intoxicating liquors. It was not necessary, in the management, control, and employment of prosecution under a statute forbidding sale of convicts by requiring a license of all persons malt liquor, to prove that malt liquor, was manufacturing, selling, or distributing any intoxicating. State v. O'Connell, 58 Atl. 59, imitation of beer, ale, wine, whiskey, or other 60,99 Me. 61.
spirituous or malt liquors, as used in that arUnder a statute imposing a tax upon the ticle providing that the tax on malt liquors business of trafficking in spirituous, vinous, shall be devoted to the support of the common malt, or other intoxicating liquors, "malt liq- schools, has referrence to and is intended to uors," whether intoxicating or not, are sub- include only such malt liquors as are intoxiject to the tax. La Follette v. Murray, 91 cating in their nature. Carroll v. Wright, 63 N. E. 294, 295, 81 Ohio St. 474.
S. E. 260, 268, 131 Ga. 728.
St. 1898, c. 1565c, prohibiting the sale of , uors in local option territory, and its sale is any spirituous, malt, ardent, or intoxicating prohibited irrespective of the label on the liquors or drinks in no-license territory, when bottles or the name adopted. Flanders v. considered in connection with section 1565, Commonwealth, 130 S. W. 809, 811, 140 Ky. as amended by Laws 1905, p. 520, c. 341, pro- 38. viding that proof of the sale of any malt, An affidavit charging accused with the spirituous, vinous, or distilled liquor shall be unlawful sale of a “pint of beer" sufficiently deemed proof of the sale of intoxicating liq. alleged a sale of malt liquor so as to render uors, etc., is violated by a sale of malt liq- the affidavit sufficient; "beer" being a feruors or drinks which are the product where mented liquor or a malt liquor made from the alcohol, produced by fermentation, of malted grain or hops or other bitter flavors. which malting is a preliminary process, re- Turner v. State, 93 N. E. 225, 226, 175 Ind. 1. mains in the liquor drawn off from the malt, or by a sale of spirituous liquors or drinks of "malt liquor,” where the testimony of a
Under an indictment for the illegal sale which are the product where the alcohol is separated by distillation so that the liquor
witness was that he bought "beer," it suffiseparated contains a percentage of alcohol, the witness in the sense of malt liquor.
ciently appeared that the word was used by or by a sale of ardent liquors or drinks, or by Locke v. Commonwealth (Ky.) 74 S. W. 654, a sale of intoxicating liquors or drinks, and hence a sale of malt liquor containing alcohol 655; State v. Gibbs, 123 N. W. 810, 109 Minn.
247, 25 L. R. A. (N. S.) 449. is an offense, though the beverage is a nonintoxicant. Pennell v. State, 123 N. W. 115,
Cider 116, 141 Wis. 35.
Cider is not a “malt liquor." Malt liqUnder Ky. St. 2557, prohibiting the uors are intoxicating but cannot be classed as sale of spirituous, vinous, and malt liquors spirituous. Donithan v. Commonwealth, 64 in local option territory, a sale of malt lig- S. E. 1050, 109 Va. 845. uor whether it intoxicates some people or As intoxicating liquor not or is only a mild intoxicant, or whether See Intoxicating Liquor. accused believed that it was an innocent soft
As liquor drink, is an offense. Flanders v. Commonwealth, 130 S. W. 809, 811, 140 Ky. 38.
See Liquor. Byrd Law (Acts 1908, pp. 275-287, c. 189) MALT ROSE $ 2342, defines "malt beverage" a nonintoxi- As liquor, see Liquor; Malt Liquor. cating liquor, and requires the manufacturer to pay a special license tax and give a bond.
MALUM IN SE Section 28 provides that the act shall not affect municipal charter provisions respecting Acts “malum in se" are generally regardlicenses. Manassas Charter (Acts 1901-2, p. ed as absolutely void in the sense that no 216, c. 215; Acts 1906, p. 204, c. 128) 8 14, right or claim can be derived from them. In requires the payment of license to sell “malt re T. H. Bunch Co., 180 Fed. 519, 527. liquors.” Held, that "malt beverage” is a malt liquor within the charter provision, and MAN that compliance with the Byrd law does not avoid necessity for complying with the char- See Confidence Man; Reasonable Man; ter provision. Commonwealth v. Goodwin, 64 Signal Man. S. E. 54, 56, 109 Va. 828.
Man in charge of train, see Conductor.
Men as meaning one, see Men. Beer
"Man" is a term to designate a male perThe term "beer" being presumed to refer son over 21 years of age. Hartsell v. State, to a malt liquor, a charge of illegally selling 116 S. W. 1159, 55 Tex. Cr. R. 389; White malt liquors is supported by evidence of the v. Same (Tex.) 151 S. W. 826. sale of beer, although the specific kind of
An instruction, on the trial of a man for beer is not shown. Wilson v. State, 57 South. 503, 3 Ala. App. 158.
murder, that to establish the defense of self
defense it must appear that the circumstancThe courts will take judicial notice that es were sufficient to excite the fears of a lager beer is a “malt liquor,” the sale of reasonable “man” or one reasonably courawhich is prohibited by statute. Purcell v. geous and reasonably self-possessed, and not State, 55 South. 847, 848, 61 Fla. 43.
of a coward, is not erroneous for the use of the The term "malt liquor," as used in the word "man,” which is used in its generic liquor tax law (Laws 1897, p. 207, c. 312), sense. Anderson v. State, 43 S. E. 835, 836, regulating the sale of malt liquors, includes 117 Ga. 255. lager beer. Cullinan v. McGovern, 94 N. Y.
Minor Supp. 525, 526.
Under Pub. St. 1901, c. 278, § 15, providCommon beer is a malt liquor within Ky. ing that, if any man shall unlawfully and St. & 2557, prohibiting the sale of malt liq. carnally know any woman child under the