Blacks Law Dict. 1st ed

MAHTIA PILffiCOGITATA

745

MALESWOKN

in particular, but evil design in general, the dictate of a wicked, depraved, and malignant heart; not premeditated personal hatred or revenge towards the person killed, but that kind of unlawful pur pose which, if persevered in, must produce mis chief. 49 N. H. 899. MALICE PREPENSE. Malice afore thought; deliberate, predetermined malice. 2 Rolle, 461. MALICIOUS. Evincing malice; done with malice and an evil design; willful. MALICIOUS ABANDONMENT. In criminal law. The desertion of a wife or husband without just cause. MALICIOUS ARREST. An arrest made willfully and without probable cause, but in the course of a regular proceeding. MALICIOUS INJURY. An injury committed against a person at the prompting of malice or hatred towards him, or done spitefully or wantonly. MALICIOUS MISCHIEF. A term ap plied to the willful destruction of personal property, from actual ill will or resentment towards its owner or possessor. 3 Dev. & B. 130. Malicious mischief or damage is a species of in jury to private property, which the law considers as a public crime. This is such as is done, not a/nimo furandi, or with an intent of gaining by another's loss, but either out of a spirit of wanton cruelty or wicked revenge. In this latter light it bears a near relation to the crime of arson, for, as that affects the habitation, so does this the proper ty, of individuals; and therefore any damage aris ing from this mischevious disposition, though only a trespass at the common law, is now, by several statutes, made severely penaL Jacob. MALICIOUS PROSECUTION. A ju dicial proceeding instituted against a person out of the prosecutor's malice and ill will, with the intention of injuring him, without probable cause to sustain it, the process and proceedings being regular and formal, but not justified by the facts. For this injury an action on the case lies, called the "action of malicious prosecution." MALIGNARE. To malign or slander; also to maim. M A L I T I A . Lat. Actual evil design; express malice. Malitia est acida; est mall animi af fectus. Malice is sour; it is the quality of a bad mind. 2 Bulst. 49. MALITIA PBJECOGITATA. Malice aforethought.

MALESWOBN, or MALSWOBN. Forsworn. Cowell. MALFEASANCE. The wrongful or un just doing of some act which the doer has no right to perform, or which he has stipulated by contract not to do. It differs from "mis feasance" and "non-feasance," (whichtitles see.) See 1 Chit. Pr. £); 1 Chit. PL 134. MALFETRIA. In Spanish law. Of fense. White, New Becop. b. 2, tit. 19, o. 1.§1. MALICE. In criminal law. In its legal sense, this word does not simply mean ill will against a person, but signifies a wiong ful act done intentionally, without just cause or excuse. 4 Barn. & C. 255. A conscious violation of the law (or the prompting of the mind to commit it) which operates to the prejudice of another person. About as clear, comprehensive, and correct a definition as the authorities affoi d is lhat "malice is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken." 8 Tex. App. 109. "Malice," in its common acceptation, means ill will towards some person. In its legal sense, it applies to a wrongful act done intentionally, with out legal justification or excuse. 1 Ind. 844. A man may do an act willfully, and yet he free of malice. But he cannot do an act maliciously without at the same time doing it willfully. The malicious doing of an act includes the willful do ing of it. Malice includes intent and wilL 66 Me. 828. Malice is either express or implied. The former is the case where the party declares or manifests a positive intention to commit the crime; while implied malice is gathered, as an inference of law, from the facts and cir cumstances proved. In the definition of "murder," malice aforethought exists where the person doing the act which causes death has an intention to cause death or grievous bodily harm to any person, (whether the person is actually killed or not,) or to commit any felony what ever, or has the knowledge that the act will probably cause the death of or grievous bod ily harm to some person, although he does not desire it, or even wishes that it may not be caused. Steph. Crim. Dig. 144; 1 Russ. Crimes, 641. The words'* malice aforethought" long ago ac quired in law a settled meaning, somewhat different from the popular one. In their legal sense they do not import an actual intention to kill the deceased. The idea is not spite or malevolence to the deceased

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