short, and stating that "malice" did not mean mere hatred or dislike, but that condition of mind which prompted a person to intentionally take the life of another, and that "malice aforethought" meant malice with premeditation, properly defined "murder in the second degree." State v. Myers, 121 S. W. 131, 135, 221 Mo. 598. "Malice" means that condition of the mind which prompts one to do a wrongful act intentionally, and to take the life of another without legal justification or excuse. It does not mean mere spite, hatred, or ill will, but it signifies the state of disposition which shows a heart regardless of social duty and fatally bent on mischief. Malice may be presumed from the intentional use of a deadly weapon in a manner likely to produce death. State v. Vaughan, 98 S. W. 2, 5, 200 Mo. 1. ally understood, but signifies an unlawful state of the mind, and such state of the mind as one is in who intentionally does an unlawful act. State v. Hottman, 94 S. W. 237, 239, 196 Mo. 110. "Malice" does not mean mere spite or ill will, as the term is commonly understood, but means the intentional doing of a wrongful act, and signifies that state of mind or disposition which would prompt one person to take the life of another or do him some great bodily harm without just cause or excuse. State v. Tetrick, 97 S. W. 564, 565, 199 Mo. 100. Where one intentionally, willfully, without justification or excuse, and while his mind was cool enough to realize the nature of his acts, shot another with intent to kill, he was actuated by "malice." Williams v. State, 135 S. W. 552, 553, 61 Tex. Cr. R. 589. "Malice," as an element of murder, contemplates wickedness and excludes a just or legal cause of excuse. It is "expressed" where there is positive direct evidence showing that, at the time of the killing, it was really entertained and "implied," where the evidence does not directly show that the malice was entertained at that time but is necessarily indirectly implied from the circumstances and facts which have been proved. State v. Lee, 60 S. E. 524, 525, 79 S. C. 223. In a prosecution for murder, the court charged that "malice is also necessary to murder in the first degree. The distinguishing feature, so far as malice is concerned, is that, in murder of the first degree, malice must be proven to your satisfaction beyond a reasonable doubt as an existing fact, while in murder of the second degree malice will be implied from the fact of an unlawful killing." Held that, if the instructions stood alone, the latter part of the paragraph might be erroneous, but as it was followed by an instruction defining malice as being that which the law infers from certain acts, how-ice ever suddenly done, as when the fact of an unlawful killing is established and the facts do not establish malice beyond a reasonable doubt, though they tend to excuse or justify the act, then the law implies malice, and the murder is murder of the second degree, and also that if the killing is unlawful and done with implied malice aforethought, it would be murder in the second degree, the instructions taken together were correct. Eggleston v. State (Tex.) 128 S. W. 1105, 1109. The term "malice" does not mean mere hatred or ill will, as the term is commonly understood, but it means the intentional doing of a wrongful act, and signifies that state of the mind or disposition that would prompt one man to take the life of another, or do him some great bodily harm, without just cause or excuse. State v. Bond, 90 S. W. 830, 831, 191 Mo. 555. A charge on a trial for murder that malincluded not only anger, hatred, ill will, and desire for revenge, but every other unlawful and unjustifiable motive; that a thing done with a wicked mind and attended with such circumstances as plainly indicated a heart regardless of social duty and fully bent on mischief indicates malice within the mean ing of the law; and that the existence of malspoken-was not erroneous, nor was the substitution of the word "fully" for "fatally" prejudicial. Maynard v. State, 116 N. W. ice is inferred from acts committed or words 53, 57, 81 Neb. 301. As respects the offense of willfully and maliciously burning property of another, the "malice" must have as its object some person, ordinarily the owner of the property, and not the property itself; but it is not necessary that the offender knew who the owner was, it being enough that he was bent on mischief against the owner, whoever he might be. State v. Leslie, 115 N. W. 897, 898, 138 Iowa, 104, 128 Am. St. Rep. 160. The distinguishing feature in the degrees 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. State, 90 S. W. 1107, 1108, 48 Tex. Cr. R. 549. and defining malice as including not only anger, 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, providing that every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another with any kind of a firearm, with intent to kill any person, is punishable. Bartell v. State, 111 Pac. 669, 670, 4 Okl. Cr. 135. "Malice" in law does not necessarily mean hate or ill will, but is defined as any unlawful act, willfully done, without just cause or legal excuse. It is that mental state or condition which prompts the doing of an unlawful act without legal justification or extenuation. Patterson v. State, 47 South. 52, 54, 156 Ala. 62. An instruction that "malice" signifies a condition of the mind void of social duty and fatally bent on mischief, or an unlawful intention to kill or do some great bodily harm to another without just cause or excuse, is correct. State v. Forsha, 88 S. W. 746, 751, 190 Mo. 296, 4 L. R. A. (N. S.) 576. Where the court at the request of the jury in a homicide case, returning for further instructions, read a definition of "malice" in a law book as not necessarily hatred or ill will, but as an intentional doing of an unlawful act, and that malice, as an ingredient of murder, was the killing of a human being without justification, excuse, or extenuation, and then stated that malice, as an ingredient of murder, did not necessarily mean hatred or ill will, but was the unlawful and willful killing of a human being without any legal excuse or justification, the definition adopted by the court was proper, and the definition read from the law book was not calculated to convey to the jury the impression that it was adopted as a part of the definition requested. Coates v. State, 56 South. 6, 8, 1 Ala. App. 35. The "malice" essential to convict of murder may be ascertained from previous threats and measures taken in preparation, and it may also arise suddenly and be implied from circumstances, as from the intentional use at the outset of a deadly weapon. Brown v. State, 54 South. 305, 98 Miss. 786, 34 L. R. A. (N. S.) 811. "Malice" essential to constitute murder, as distinguished from manslaughter, includes all those states of the mind in which a homicide is committed without legal justification, extenuation, or excuse, and where an unlawful homicide is shown to have been committed, and its attending circumstances disclose nothing to mitigate, extenuate, or excuse the act, "malice" on the part of the slayer is presumed. State v. Marx, 60 Atl. 690, 692, 78 Conn. 18. In libel and slander "Malice" in the law of slander is used in a popular sense. Hubbard v. Allyn, 86 N. E. 356, 359, 200 Mass. 166, 22 L. R. A. (N. S.) 730. While it is true that in slander "malice" is the gist of the action, yet the term "malice" is always used in such cases in a legal sense. Weller v. Western State Bank of Waukomis, 90 Pac. 877, 882, 18 Okl. 478. The word "malice," as used in the law of libel and slander, does not mean hatred or ill will, but the want of legal excuse for the publication. Sheibley v. Nelson, 121 N. W. 458, 460, 84 Neb. 393. "Malice" in fact may be defined as a spiteful or rancorous disposition which causes an act to be done for mischief. Implied malice is sufficient to support an action for slander, where the other elements exist. Proof of express malice authorizes punitive damages. Where one charges another with larceny, the law imputes malice. Crump, 40 South. 609, 610, 146 Ala. 655 (quoting and adopting definition in Childers v. San Jose Printing & Publishing Co., 38 Pac. 903, 105 Cal. 284, 45 Am. St. Rep. 40). Lee v. "Malice' is presumed from the making by one person of derogatory statements with reference to another in regard to his competency or fitness for his trade or profession, and such derogatory language is slanderous per se." Vial v. Larson, 109 N. W. 1007, 132 Iowa, 208 (citing Newell, Slander & Libel [2d Ed.] 182, 393). Malice, as used in cases of slander and libel, does not necessarily imply actual evil intent, but rather the want or absence of any legal excuse for the speaking or publication of the injurious words. Where slanderous words are actionable per se, malice is presumed. McDonald v. Nugent, 98 N. W. 506, 508, 122 Iowa, 651. Where words are spoken which are slanderous per se, malice is presumed; but the malice which is thus presumed is known as legal malice, as distinguished from actual or express malice, or malice in fact. In an action for slander, the absence of actual malice will not defeat the action, and the party injured may recover his actual damages; but where actual malice is charged in a complaint, and more than compensatory damages are claimed for the injury, the actual motive or intent with which the publication was made becomes an important fact from which to determine the amount of damages to be awarded. Wrege v. Jones, 100 N. W. 705, 707, 13 N. D. 267, 112 Am. St. Rep. 679, 3 Ann. Cas. 482. "The term 'malice,' as employed in the definition of libel per se, is often misunderstood by the general reader, and is sometimes misapprehended by lawyers. It does not necessarily mean personal hatred or ill will toward the person at whom the libel is directed. Legal malice in the publishing of a libel is not inconsistent with honesty of purpose and good motive. * * In other words, malice is the want of legal excuse for 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 C. C. A. 41, 45). Where, in libel for newspaper articles, some of which did not refer to plaintiff, and some of which were not libelous per se, there was no averment of extrinsic facts that the articles referred to plaintiff or any innuendo from which it could be inferred that they charged plaintiff with such conduct as to render it libelous per se, an instruction that "malice" means the intentional doing of a wrongful act without excuse, and that if the articles published were libelous in whole or in part, and were published concerning plaintiff, and were not true, the law presumed that they were published maliciously, and it was not necessary to prove any malice to warrant a verdict for plaintiff, was erroneous, because it did not confine the presumption of malice to the articles which were libelous per se. Flowers v. Smith, 112 S. W. 499, 509, 214 Mo. 98 (citing and adopting Mitchell v. Bradstreet Co., 22 S. W. 362, 116 Mo. loc. cit. 240, 20 L. R. A. 138, 38 Am..St. Rep. 592). "By 'legal malice,' as explained by Bayley, J., in Bromage v. Prosser, 4 B. & C. 255 (E. C. L. R. vol. 10), is meant no more than the wrongful intention which the law always presumes as accompanying a wrongful act, without any proof of malice in fact. * * * In a legal sense, any act done willfully and purposely to the prejudice and injury of another, which is unlawful, is, as against that person, malicious. It is not necessary, to render an act malicious, that the party be actuated by a feeling of hatred or ill will towards the individual, or that he entertain and pursue any general bad purpose or design. On the contrary, he may be actuated by a general good purpose, and have a real and sincere design to bring about a reformation of manners; but if, in pursuing that design, he willfully inflicts a wrong on others, which is not warranted by law, such act is malicious." Star Pub. Co. v. Donahoe (Del.) 58 Atl. 513, 517, 65 L. R. A. 980 (quoting and adopting definition in Commonwealth V. 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 reputation, business, and feelings which the defamatory publication caused. A written or printed article of this character is libelous in itself. From its publication the conclusive presumption of actual damages to its victim, and of 'legal malice' (that is to say, of an act done wrongfully without legal justification or excuse'), at once arises. The fact that the publisher was without malice, in the popular acceptation of that term (that is to say, without ill will, bad motive, hatred, 114 Am. St. Rep. 171, 7 Ann. Cas. 840 (quoting and adopting Hemmens v. Nelson, 34 N. E. 342, 138 N. Y. 524, 20 L. R. A. 440; Odgers, L. & S. 267). Pen. Code, § 242, defines criminal libel vides that a publication having such tendas a malicious publication, section 244 proency is deemed malicious if no justification or excuse is shown, and section 718, subd. 3, licious" each import an evil intent, wish, or provides that the terms "malice" and "madesign to annoy or injure another. 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 People v. Star Co., 120 N. Y. Supp. 498, 500, 135 App. Div. 517. whether they are inflicted by the publisher with a good or an evil intent, and the victim is as clearly entitled to full compensation for a wrong inflicted with a laudable motive, or through mistake or inadvertence, as for one perpetrated with a diabolical purpose or intent. The intent or purpose with which such a publication is made is immaterial in the trial of the claim for the actual or compensa Civ. Code, § 47, defines a "privileged communication" as one without malice, to a person interested therein, by one who is also interested; one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive innocent, or who is requested by the person interested to give the information; and sec tion 48 declares that the "malice" so referred to is not inferred from the communication or publication. Held, that "malice" as used in section 47 meant malice in fact, or a libel published with an actual, malicious intent. Davis v. Hearst, 116 Pac. 530, 540, 160 Cal. 143. "By 'malice' is not meant, necessarily, spite or ill will, but it is also meant the doing of a wrongful act intentionally, without just cause or excuse; and if an article complained of was published of and concerning plaintiff, and was not true, and was a libel on him, then the law presumes it was published maliciously. Only legal malice is exacted, and on analysis this sinks into a myth or fiction, for so much malice as is necessary to afford compensation for actual damages is inferred from the fact that a false writing was published concerning plaintiff, although in truth the publisher felt no ill will, and believed he was telling the truth. This result eliminates malice from actions for libel, as a practical factor, save as a reason for awarding more than compensative damages or overcoming the defense of privileged communication." What is meant by "malice" in these actions is that the publication of the false matter was without legal excuse, or, to present the rule in a perfectly definite and intelligible form, that it was unprivileged. If it was a privileged communication, no malice is inferred from the publication, and the case fails, unless malice is otherwise proved, and where, through a mistake as to identity, plaintiff's picture was published in connection with an acticle which was false and libelous as to him, it was malicious. Farley v. Evening Chronicle Pub. Co., 87 S. W. 565, 568, 113 Mo. App. 216. In malicious mischief Malice, as an element of malicious mischief, is not restricted to ill will or revenge against the owner or possessor of the property injured; but a willful or wanton injury to property, under circumstances indicating a malignant spirit or mischief, is sufficient to constitute malicious mischief, and such malice may be either expressed or implied. State v. Wright (Del.) 79 Atl. 399, 400, 2 Boyce, 393. On a trial for malicious mischief in violation of Rev. Pen. Code, § 712, an instruction that such acts in relation to the property of another as evince a disposition of wanton deviltry and reckless disregard of the rights and property of another are, in law, malice, together with the charge that to justify a conviction the jury must find not only that accused willfully and intentionally, but that he wantonly and in a spirit of revenge, injured the property of another, sufficiently describes "malice," as defined by section 811 as importing a wish to annoy or injure another. State v. Tarlton, 118 N. W. 706, 708, 22 S. D. 495. In malicious prosecution "Malice" is a wrongful motive which prompts a wrongful act. The institution of criminal proceedings with any other motive than that of bringing a guilty person to justice is a malicious prosecution. Rulison v. Collins, 82 S. W. 748, 750, 5 Ind. T. 282 (quoting and adopting definition in Addison, Torts [Wood's Ed.] § 853; Johns v. Marsh, 52 Md. 323; Garvey v. Wayson, 42 Md. 178; Harpham v. Whitney, 77 Ill. 32). The malice required to be shown is the wrongful motive prompting the prosecution, and may be established by proof of any motive other than that of bringing a guilty party to justice. Money weight Scale Co. v. McCormick, 72 Atl. 537, 540, 109 Md. 170. In an action for malicious prosecution, a definition of malice as a "disposition to do the person prosecuted a wrong without legal excuse" was not prejudicial to plaintiff. Gaither v. Carpenter, 55 S. E. 625, 626, 143 N. C. 240. The malice essential to sustain an action for malicious prosecution, does not mean personal ill will, but a wrongful act, knowingly and intentionally done, without just cause, constitutes malice. Stanford v. A. F. Messick Grocery Co., 55 S. E. 815, 817, 143 N. C. 419. "Malice" need not indicate anger or vindictiveness, but it imports bad faith in a malicious prosecution, or the want of sincere belief that the facts and circumstances justify the prosecution. Griswold v. Griswold, 77 Pac. 672, 673, 143 Cal. 617. The fact that an action was commenced and prosecuted without probable cause may be considered by the jury on the question of malice. Actual malicious purpose or personal ill will is not essential to constitute the legal malice which must be shown to support an action for malicious prosecution. The malice required to support the action may be inferred by the jury from the want of probable cause. Connelly v. White, 98 N. W. 144, 145, 122 Iowa, 391. "Malice," in law, is the intentional doing of a wrongful act without just cause or excuse. It is not sufficient, to sustain an action for malicious prosecution, to prove made was false. that the affidavit upon which the arrest was It must also appear that the affiant either knows it was false, or did not have reasonable and probable cause to believe it to be true. Izzo v. Viscount, 64 Atl. 953, 954, 74 N. J. Law, 65 (quoting and adopting McFadden v. Lane, 60 Atl. 367, 71 N. J. Law, 630). "Malice," in its legal sense, as used in actions for malicious prosecution, "is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated 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 v. 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 rather on whether the act was offensive to the person injured than on the intent, purMcPherpose, or state of mind of the actor. son v. Chandler, 72 S. E. 948, 949, 137 Ga. 129. "Legal malice," as distinguished from "express" or "actual malice," and which is sufficient to support an action for maliciously suing out process, but not to support an award of punitive damages, consists in a wrongful act intentionally done, without just and lawful cause or excuse. Wright v. Harris, 76 S. E. 489, 492, 160 N. C. 542. In an action for malicious prosecution, held, that it was proper to instruct the jury that: "Malice' in law means an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling or spite.or a desire to injure another. It is enough if defendant be actuated by improper or sinister If the purpose of the arrest was anything else than to vindicate the law and punish crime, then they might infer that defendant had a malicious motive in causing the same." Hackler v. Miller, 114 N. W. 274, 276, 79 Neb. 209. motives. Negligence distinguished In an action for malicious prosecution, an instruction that: "Malice' is defined as any indirect motive of wrong; and, in the legal sense, any unlawful act, which is done willfully and purposely to the injury of another, is, as against that person, malicious; and by malice is meant not the act, but the motive which prompts the act. It consists of a bad motive, or such reckless disregard of the rights of others as to show evil intent. It is an action based upon an improper motive, and does not necessarily presuppose personal hatred, ill will, or revenge. The improper motive or want of proper motive inferable from a wrongful act, based upon no reasonable ground, constitutes of itself all the malice deemed essential in law to the maintenance of the action. The malice necessary to be shown in order to maintain this action is not necessarily revenge or other base and malignant passion; whatever is done willfully and purposely, if it be at the same time wrong and unlawful, and that known to the party, is, in legal contemplation, malice. If, how-sciously, but merely that the person doing ever, the accused is in fact guilty of the offense charged, that would be a complete defense in this action, and it would be immaterial whether the proceedings complained of were malicious or not"-was correct. Miles v. Walker, 92 N. W. 1014, 1016, 66 Neb. 728. "Malice," as an element of malicious prosecution, does not necessarily mean anger, wrath, or vindictiveness, but, while any such The doing of an act without that ordinary prudence and discretion which persons of mature mind and sound judgment are presumed to have constitutes "negligence," but will not alone warrant an inference of "malice." Malice is distinguishable from mere negligence in that it arises from some purpose, while negligence arises from absence of purpose. The characteristic of negligence is inadvertence or an absence of an intent to injure. This does not imply that the act was done involuntarily or uncon it was not conscious that the act constituted a want of reasonable care. Jenkins v. Gilligan, 108 N. W. 237, 238, 131 Iowa, 176, 9 L. R. A. (N. S.) 1087 (citing Pickens v. South Carolina & G. R. Co., 32 S. E. 567, 54 S. C. 498). Lack of probable cause distinguished "Malice' and 'lack of probable cause' are not convertible terms. Neither follows as a legal presumption from the other. The jury may infer malice as a fact from proof of want of probable cause; but they cannot infer a lack of probable cause from proof of malice. Both must be proved. Honesty of ill feeling may constitute malice, it need be no more than the antithesis of bona fides, and hence particular malice or malicious or wrongful purpose, in the sense of personal ill will or malevolence existing toward the per-purpose precludes malice. Malice is any imson prosecuted by the prosecutor is not required. Downing v. Stone, 68 S. E. 9, 10, 152 N. C. 525, 136 Am. St. Rep. 841, 21 Ann. Cas. 753. Under Civ. Code 1910, § 4451, providing that malice may consist in personal spite, or in a general disregard of the right consideration of mankind directed by chance against the individual injured, a charge, in an action for illegal arrest and malicious proper or sinister motive for instituting the suit. It need not spring from any spirit of malevolence, or be prompted by any malignant passion." While many authorities hold that probable cause is a reasonable ground of suspicion supported by circumstances sutliciently strong in themselves to warrant a cautious person in the belief that there were grounds for the attachment, the better rule and the one approved is that belief and rea |