sonable grounds must unite to constitute | shown for the existence of malice, yet it probable cause. However, the distinction must be aforethought; that is, it must be remay 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. Jennings, 2 W. Va. 242; Commonwealth v. Snelling, 15 Pick. [32 Mass.] 337; Mitchell v. Wall, 111 Mass. 492; Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116; Williams v. Hunter, 14 Am. Dec. 597, note; Bozeman v. Shaw, 37 Ark. 160; Frowman v. Smith, 12 Am. Dec. 265, notes; and citing to the rule approved King v. Colvin, 11 R. I. 582, 584; Newell, Mal. Pros. p. 252).

The malice which is an essential element in the offense of murder has always been 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 "Malice aforethought" means that the act was done with malice and premeditation. State v. Vaughan, 98 S. W. 2, 5, 200 Mo. 1. The phrase "malice aforethought" means wealth, 101 S. W. 956, 960, 125 Ky. 601.

a predetermination to do the act of killing without legal excuse, and it is immaterial how suddenly or recently before the killing such determination was formed. Hill v. Commonwealth (Ky.) 91 S. W. 1123, 1124 (quoting and adopting the definition in Clark V. Commonwealth [Ky.] 63 S. W. 740).

"Malice aforethought' means in law that it has been thought of beforehand, so that, to constitute murder, the evidence must show that the defendant thought of it be forehand, but as to the length of time it is immaterial." Green v. United States, 104 S. W. 1159, 1160, 7 Ind. T., 733.

"Express malice aforethought" is shown where one person kills another with a sedate, deliberate mind and formed design. State v. Watson (Del.) 82 Atl. 1086, 1087.

"Malice aforethought," as it exists in murder, is a deliberate and formed design to kill, which may be manifested by a lying in wait, antecedent threats, former grudge, ill will, spite, hatred, or any circumstances that show the accused's intent toward his victim at the time of the killing. State v. Primrose (Del.) 77 Atl. 717, 719, 2 Boyce, 164. In a prosecution for murder, it was error, in attempting to define "malice aforethought," to charge the jury: "If the thought came to the mind (of the defendant), 'I will kill,' and he did kill immediately after that,

a predetermination to do the act of killing without legal excuse, and it is immaterial at what time before the killing such a determination was formed. Ball v. Common

On a trial for murder, it is proper to advise the jury that "malice aforethought" means a predetermination to do the act of killing without a legal excuse, and it is immaterial as to what time before the killing such a determination was formed. Burns v. Commonwealth, 124 S. W. 409, 412, 136 Ky. 468.

On a trial for murder, the court should instruct that the words "malice aforethought" mean a predetermination to do the act of killing without legal excuse, and that it is immaterial how suddenly or recently before the killing such determination formed. Ewing v. Commonwealth, 111 S. W. 352, 355, 129 Ky. 237.

An instruction that the words "with malice," as used in the instruction, denoted a wrongful act intentionally done, and that the term "aforethought," as used, meant a predetermination to do the act, however suddenly or recently formed before the act was done, sufficiently defined "malice aforethought," especially when taken in connection with another instruction defining "feloniously" as meaning to proceed from an evil heart or purpose, done with the deliberate intention to malice aforethought did not require that the commit a crime, though the definition of act be done "without legal excuse." Potter v. Commonwealth, 134 S. W. 462, 142 Ky.

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 immaterial how suddenly or recently before the killing such determination was formed. Combs v. Commonwealth (Ky.) 112 S. W. 658,

To constitute an "assault with intent to murder" within Gen. St. 1146, the assault must be made with malice aforethought, and when an assault is actuated by malice, no matter how short a time it existed previous to the forming of the intent to kill, the malice is "malice aforethought." State v. McGuire, 80 Atl. 761, 765, 84 Conn. 470, 38 L. R. A. (N. S.) 1045.

An instruction, defining "malice aforethought" as a predetermination to do a wrongful act without lawful excuse, and that it was immaterial how suddenly or how recently such predetermination was formed in the mind, was not objectionable as including a predetermination to do a wrongful act in general without requiring that the wrong ful act be to kill decedent. Howard v. Commonwealth, 139 S. W. 844, 845, 144 Ky. 644.

The phrase "malice aforethought," as used in an indictment charging willful murder and in the instruction defining willful murder and voluntary manslaughter, means

660.

Rev. Laws, c. 207, § 1, declares that murder committed with deliberately premeditated malice aforethought, or in the commission or attempt to commit any crime punishable with imprisonment for life, or committed with extreme atrocity or cruelty, is murder in the first degree, and punishable with death. In a prosecution for such offense, the court charged that the words "deliberately premeditated malice aforethought" meant simply "thought upon, resolved upon beforehand, not a thing done suddenly, not a thing that comes into the mind of a sudden, and is done before there is time to think about it, but a thing thought upon or planned some time before, or thought upon long enough before the act is done so that it can reasonably be said to have become a purpose of the mind," that "no particular 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 the next shoots or stabs the messenger dead, takes the package, and flees, his malice was deliberately premeditated, though it occupied only a few seconds to accomplish. Held,

that both the definition and illustration were

proper. Commonwealth v. Tucker, 76 N. E. 127, 138, 140, 141, 189 Mass. 457, 7 L. R. A. (N. S.) 1056.

An instruction, in a prosecution for murder, that "malice aforethought" means with malice and premeditation is correct. State v. McCarver, 92 S. W. 684, 686, 194 Mo. 717.

"Malice aforethought," as it exists in murder, is a deliberate and formed design to kill, which may be manifested by a lying in wait, antecedent threats, former grudge, ill will, spite, hatred, or any circumstances that show the accused's intent toward his victim at the time of the killing. State v. Primrose, (Del.) 77 Atl. 717, 719, 2 Boyce, 164.

Ill will implied

"Malice aforethought," either expressed or implied, is manifested by the doing of an unlawful and felonious act intentionally and without legal cause or excuse. It does not imply a pre-existing hatred or enmity toward the individual injured. People v. Balkwell, 76 Pac. 1017, 1019, 143 Cal. 259.

The intent essential to constitute an "assault with intent to murder" relates to the condition of the mind of accused, and it may arise from improper motives, as from hatred toward the person assaulted, or from an evil design in general, a wanton and depraved spirit, a mind devoid of social duty and fatally bent on mischief. To constitute an "assault with intent to murder" within Gen. St. § 1146, the assault must be made with intent to kill, and when an assault is actuated by malice, no matter how short a time it existed previous to the forming of the intent to kill, the assault committed is assault with intent to murder. State v. McGuire, 80 Atl. 761, 84 Conn. 470, 38 L. R. A. (N. S.)

1045.

"Maliciously" and "malice aforethought” do not mean the same thing. Malice comprehends ill will, a wickedness of disposition, cruelty, recklessness, a mind regardless of social duty, etc., while "malice aforethought” or "premeditated" design has a more intense meaning. They comprehend, not only what is included within the term "malice," but in addition thereto mean "premeditated malice.” Butt v. State, 47 South. 781, 783, 94 Miss. 669 (citing 5 Words and Phrases, p. 4304; 1 Bish. Cr. Law [8th Ed.] p. 261; Patterson v. State, 66 Ind. 185; Tutt v. Commonwealth, 46 S. W. 675, 104 Ky. 299; State v. Green, 7 South. 793, 42 La. Ann. 644; State v. Curtis, 70 Mo. 594; Cravey v. State, 35 S. W. 658, 36 Tex. Cr. R. 90, 61 Am. St. Rep. 833).

MALICE IN LAW OR FACT

Malice in law is not personal hate or ill will of one person towards another. It refers to that state of mind which is reckless of law and the legal rights of the citizens in a person's conduct towards that citizen. Foley v. Northrup, 105 S. W. 229, 230, 47 Tex. Civ. App. 277.

"Malice in fact" is a spiteful or rancorous disposition which causes an act to be done for mischief, and is always a question of fact for the jury. Walker v. Chanslor, 94 Pac. 606, 608, 153 Cal. 118, 17 L. R. A. (N. S.) 455, 126 Am. St. Rep. 61.

In an action for slander, "malice in law" may be implied from facts proved, while malice in fact" is actual malice. Davies v. Starrett, 55 Atl. 516, 518, 97 Me. 568.

"Malice in fact," in common acceptation, means ill will against a person, while malice in law is a wrong done against a person intentionally. An instruction, in an action for malicious prosecution, that there are two kinds of malice, malice in fact and malice in law, that the former means ill will against a person, and the latter means the doing of a wrongful act intentionally, and that if de fendants or either of them were moved by ill will against plaintiff, or the prosecution of him was wrongfully caused or maintained by them, the jury should find that the prosein-cution was malicious, was not erroneous, as permitting a recovery if the prosecution was wrongfully maintained, where the petition claimed damages for the malicious continuance of the prosecution. Carp v. Queen Ins. Co., 101 S. W. 78, 97, 203 Mo. 295.

"Malice aforethought" is manifested by the doing of an unlawful or felonious act tentionally and without legal cause or excuse. It does not imply a pre-existing hatred or enmity towards the individual injured. People v. Fallon, 86 Pac. 689, 690, 149 Cal. 287.

Maliciously distinguished

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

malice, the presumption of the existence of which is raised by the law in certain cases on certain proofs, and this is the malice described in the same section as "an intent to do a wrongful act, established either by proof or presumption of law." This is a malice of pleading and proof made necessary by the exigencies of definitions of offenses against the law, and may exist with malice in fact, but may also exist independent thereof, and in some instances is conclusively presumed against a defendant, while in others the presumption is rebuttable. Davis v. Hearst, 116 Pac. 530, 537, 160 Cal. 143.

"Malice which is presumed," or "malice in law," as distinguished from "malice in fact," "is not personal hate or ill will of one person toward another; it refers to that state of mind which is reckless of law and of the legal rights of the citizen in a person's e nduct toward that citizen." Shoemaker v. Sonju, 108 N. W. 42, 44, 15 N. D. 518, 11

Ann. Cas. 1173.

One has an inherent right to dispose of his labor, which can only be lawfully interfered with by one acting in the exercise of an equal or superior right which comes in conflict therewith, and an intentional interference with such right without lawful justification is "malicious in law," even if it springs from good motives and is without express malice. Berry v. Donovan, 74 N. E. 603, 604, 188 Mass. 353, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499, 3 Ann. Cas. 738.

In an action for alienation of a husband's affections, malice is a jury question of fact, and not one of law. Kelso v. Kelso, 86 N. E. 1001, 43 Ind. App. 115.

MALICIOUS

"The legal meaning of the term 'malicious' is the unintentional doing of a wrongful act without just cause or excuse." McNamara v. St. Louis Transit Co., 81 S. W. 880, 881, 182 Mo. 676, 66 L. R. A. 486.

Whatever is done willfully and purposely, be it at the same time wrong and unlawful, is, in legal contemplation, malicious. Anderson v. International Harvester Co. of America, 116 N. W. 101, 102, 104 Minn. 49, 16 L. R. A. (N. S.) 440.

Any unlawful act, done willfully and purposely, to the injury of another, as against that person is "malicious" in a legal sense, as such term is used in the law of malicious prosecution. Plummer v. Collins (Del.) 77 Atl. 750, 751, 1 Boyce, 281.

In a legal sense, malice has a meaning different from its popular signification. Acts willfully and designedly done, which are unlawful, are "malicious" in respect to those to whom they are injurious. One may prosecute a laudable purpose with an honest intention, but in such a manner, and in such disregard of the rights of others, as to render his acts unlawful. Prosecutions may be instituted and pursued with pure motives, to suppress crimes, but so regardless of established forms of law, and of judicial proceedings, as to render the transactions illegal and malicious. The general motive may be upright and commendable, while the particular acts in reference to others, may be malicious, in the legal acceptation of the term, so that an act may be malicious in a legal sense, which is not prompted or characterized by malevolence or corrupt design. Page v. Cushing, 38 Me. 523, 526.

In a prosecution under a statute making willful and malicious misconduct in office a misdemeanor, the omission of the word "malicious" from the information is immaterial, when the acts complained of necessarily involve a willful disregard of the obligations owed by the officer to the public. State v. Dixon, 103 Pac. 130, 131, 80 Kan. 650.

Pen. Code, § 242, defines criminal libel as a malicious publication, section 244 provides that a publication having such tendency is deemed malicious if no justification or excuse is shown, and section 718, subd. 3, provides that the terms "malice" and "mali

cious" each import an evil intent, wish, or design to annoy or injure another. Held, that

libel; the evil intent of its agents who puba corporation may be convicted of criminal lished the libel being attributed to it. People v. Star Co., 120 N. Y. Supp. 498, 500, 135 App. Div. 517.

"The term 'malicious,' used in this connection [procuring a breach of contract], is to be given a liberal meaning. The act is malicious when the thing done is with the knowledge of the plaintiff's rights, and with Kirby's Dig. § 1655, provides that if any the intent to interfere therewith. It is a person shall maliciously or contemptuously wanton interference with another's contracdisturb or disquiet any congregation assem-tual rights. Ineffective persuasion to induce bled in any church for religious worship, etc., another to violate his contract would not of he shall, on conviction, be fined, etc. Held, itself be actionable, but if the persuasion be that the words "malicious" and "contemptu- used for the purpose of injuring the plaintiff ous" refer to the manner of disturbance, and or benefiting the defendant at the expense of not to the intent with which the disturbance the plaintiff, with a knowledge of the subsist

The word "malicious," in Rev. St. 1899, § 1959 [Ann. St. 1906, p. 1325], which makes it a misdemeanor for any one to "willfully and maliciously, or wantonly and without right," enter the premises of another and destroy any tree, etc., means an unlawful act, willfully or purposely done to the injury of

another, and to authorize the conviction of one for willfully and maliciously injuring trees of another, the malicious intent must be found. State v. Graeme, 108 S. W. 1131, 1133, 130 Mo. App. 138.

ence of the contract, it becomes a malicious | ed meaning peculiar to such statutes, implyact, and, if injury ensues from it, a cause ing that the act to which it relates must have of action accrues to the injured party." Em- resulted from actual ill will or revenge. The ploying Printers' Club v. Doctor Blosser Co., special meaning noted had its origin in Eng50 S. E. 353, 356, 122 Ga. 509, 69 L. R. A. land in prosecutions under the "Black Act" 90, 106 Am. St. Rep. 137, 2 Ann. Cas. 694. (St. 9 Geo. I, c. 22), enacted in 1722, so called because it was designed to repress the depredations of marauders calling themselves "blacks." The act provided that, if any person or persons shall unlawfully and maliciously kill or wound any cattle, etc., such persons shall be adjudged guilty of felony. It was held that in prosecutions under this act for injuries to cattle, in order to bring an offender within the law, the malice must be directed against the owner of the cattle, and not merely against the animal itself. In the United States most statutes prescribproperty are sufficiently like those of England ing a penalty for the malicious destruction of to warrant the inference that they were modgenerally, but not always, been given the eled on them, and for this reason they have same construction. But the effect of Crimes Act, § 112 (Gen. St. 1901, § 2105), providing that every punishment and forfeiture imposed on any person maliciously committing any ceding sections shall equally apply and be in offense prohibited by the provision of preforce, whether the offense shall be committed from malice conceived against the owner of property in respect to which it shall be committed or otherwise, is to take from the word "malicious" the specific meaning that had been attributed to it in laws against the destruction of property, and restore it to the usual sense in which it is used in criminal statutes. State v. Boies, 74 Pac. 630, 68 Kan. 167, Ann. Cas. 491.

The word "malicious," as used in Cr. Code, div. 1, § 203 (Hurd's Rev. St. 1908, p. 752, c. 38), prohibiting the malicious wounding of any domestic animal, the property of another, is not used in the sense of "wrongfully, intentionally and without just cause or excuse," but as importing actual malice towards the owner, as distinguished from a spirit of cruelty toward the animal. People v. Jones, 89 N. E. 752, 756, 241 Ill. 482, 16 Ann. Cas. 332 (citing 5 Words and Phrases, p. 4307).

Under Rev. St. 1887, § 7153, making the "malicious" killing, maiming, or wounding of a dog an offense, the word "malicious," as used, is not equivalent to the word "wrongful," as used in the law of torts. The former word means more than the latter. It necessarily involves crime, while the latter does not necessarily do so. State v. Churchill, 98 Pac. 853, 857, 15 Idaho, 645, 16 Ann. Cas. 947 (citing Chappell v. State, 35 Ark. 345; State v. Hussey, 60 Me. 410, 11 Am. Rep. 209; 2 Wharton's Crim. Law, §§ 1068-1070; State v. Phipps, 64 N. W. 411, 95 Iowa, 491; United States v. Gideon, 1 Minn. 292 [Gil. 226]; State v. Rector, 34 Tex. 565).

MALICIOUS ABUSE OF PROCESS
See, also, Abuse of Process.
Malicious prosecution distinguished, see
Malicious Prosecution.

Regular use of civil process does not become an actionable malicious abuse of process "Willful," in a statute against libel, is by being used with a bad intent. To escovered by "malicious" in an indictment; tablish actionable malicious abuse of civil the latter meaning all that the former does, process, there must appear an ulterior purand more. Glover v. People, 68 N. E. 464, pose and the improper use of process. Keith466, 204 Ill. 170 (quoting and adopting defini-ley v. Stevens, 87 N. E. 375, 376, 238 Ill. 199, tion in 1 Bishop, Crim. Proc. [3d Ed.] § 613). 128 Am. St. Rep. 120.

Under section 245 of the Penal Code, providing that any malicious publication by picture, effigy, or sign, which exposes a person to contempt, ridicule, or obloquy, is a libel, "malicious" means simply "intentional and willful." Roberson v. Rochester Folding Box Co., 64 N. E. 442, 448, 171 N. Y. 538, 59 L. R. A. 478, 89 Am. St. Rep. 828.

The "malicious suing out of an attachment" contemplates a wrongful motive in the securing of the issuance of the attachment from want of probable cause or other reason, while an "abuse of process" contemplates the use of it after its issue for a wrongful purpose, and a party cannot have damages for the latter offense unless the process issued was perverted to a purpose not intended or contemplated by the law. Wright v. Harris, 76 S. E. 489, 492, 160 N. C. 542.

The word "malicious," as ordinarily employed in criminal statutes, is the equivalent of wrongful, intentional, and without just cause or excuse; but, as used in many stat- The regular and legitimate use of proutes directed against the unlawful destruc- cess, though with a bad intent, is not a tion of property, it is held to have a restrict-"malicious abuse of process." Two elements