KFLCC Kingdom Law 2nd Ed.

750

MALICE

MALEFICIA PROPOSIT1S

son defamed. McDonald v. Brown, 23 R. I. 546, 51 Atl. 213, 58 L. R. A. 768, 91 Am. St Rep. 659; Hearne v. De Young, 132 CaL 357, 64 Pac. 576; Cherry v. Des Moines Leader, 114 Iowa, 298, 86 N. W. 323, 54 L. R. A. 855, 89 Am. St. Rep. 365; Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668 — Actnal malice. Express malice, or malice in fact. Gee v. Culver, 13 Or. 598, 11 Pac. 302.— Constructive malice. Implied malice; malice inferred from acts; malice imputed by law; malice which is not shown by direct proof of an intention to do injury, (express malice,) but which is inferentially established by the necessarily injurious results of the acta shown to have been committed. State v. Har rigan, 9 Houst. (Del.) 369, 31 Atl. 1052; Hogan v. State, 36 Wis. 238; Caldwell v. Raymond, 2 Abb. Prac. (N. Y.) 196,— Express malice. Actual malice; malice in fact; a deliberate intention to commit an injury, evi denced by external circumstances. Sparf v. U. S., 156 U. S. 61, 15 Sup. Ct. 273, 39 L. Ed. 343: Farrer v. State, 42 Tex. 271; Singleton v. State, 1 Tex. App. 507; Jones v. State, 29 Ga. 594; Wynne v. Parsons, 57 Conn. 73, 17 Atl. 362; Howard v. Sexton, 4 N. Y. 161; Herbener v. Crossan, 4 Pennewill (Del.) 38, 55 Atl. 224.— General malice. General mal ice is wickedness, a disposition to do wrong, a "black and diabolical heart, regardless of social duty and fatally bent on mischief." Neal v. Nelson. 117 N. C. 393, 23 S. E. 428. 53 Am. St. Rep. 590; Brooks v. Jones, 33 N. C. 260.— Implied malice. Malice inferred by legal reasoning and necessary deduction from the res gestae or the conduct of the party. Malice inferred from any deliberate cruel act committed by one person against another, how ever sudden. Whart. Horn. 38. What is called "general malice" is often thus inferred. Sparf v. U. S., 156 U. S. 51, 15 Sup. Ct. 273, 39 L. Ed. 343; Hotema v. U. S., 186 U. S. 413, 22 Sup. Ct. 895, 46 L. Ed. 1225; Darry v. People, 10 N. Y. 120; State v. Mason, 54 S. C. 240, 32 S. E. 357; State v. Neal, 37 Me. 469; State v. Harrigan, 9 Houst. (Del.) 369, 31 Atl. 1052.— Legal malice. An expression used as the equivalent of "constructive malice," or "malice in law." Humphries v. Parker, 52 Me. 502.— Malice aforethought. In the definition of "murder," malice aforethought ex ists where the person doing the act which caus es death has an intention to cause death or grievous bodily harm to any person, (whether the person is actually killed or not,) or to com mit any felony whatever, or has the knowledge that the act will probably cause the death of or grievous bodily harm to some person, al though 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 acquired in law a set tled 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 in particular, but evil design in gen eral, the dictate of a wicked, depraved, and malignant heart; not premeditated personal hatred or revenge towards the person killed, but that kind of unlawful purpose which, if persevered in, must produce mischief. State v. Pike, 49 N. H. 399, 6 Am. Rep. 533. And see Thiede v. Utah, 159 U. S. 510, 16 Sup. Ct 62. 40 L. Ed. 237; State v. Fiske, 63 Conn. 388, 28 Atl. 572; Nye v. People, 35 Mich. 19; People v. Borgetto, 99 Mich. 336. 58 N. W. 328; Darry v. People, 10 N. Y. 120; Allen v. U. S., 164 U. S. 492, 17 Sup. Ct. 154, 41 L. Ed. 528; Kota v. People, 136 111. 655, 27 N. E. 53; Hogan v. State, 36 Wis. 242.— Malice in fact. Express or actual malice. Railway Co. v. Behee, 2 Tex. Civ. App. 107, 21 S. W. 384;

Maleficia distinguuntur. Jenk. Cent. 290. Evil deeds are distinguish ed from evil purposes, or 7>y their purposes. propositi*

MAXEFICIUM.

In the civil law. Waste;

damage; tort; injury. Dig. 5, 18, L

MAXESON, or MALISON.

A curse.

MAIESWORN, or MALSWORN.

For

sworn. 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," (which titles see.) See 1 Chit. Pr. 9; 1 Chit PI. 134; Dudley v. Flemingsburg, 115 Ky. 5, 72 S. W. 327, 60 L. R, A. 575, 103 Am. St. Rep. 253; Coite v. Lynes, 33 Conn. 115; Bell v. Josse lyn, 3 Gray (Mass.) 311, 63 Am. Dec. 741. Of fense. White, New Recop. b. 2, tit. 19, c 1, § 1. In its legal sense, this word does not simply mean ill will against a person, but signifies a wrongful act done intentionally, without just cause or excuse. Bromage v. Prosser, 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 afford is that "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." Harris v. State, 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 inten tionally, without legal justification or excuse. Dunn v. Hall, 1 Ind. 344. A man may do an act willfully, and yet be free of malice. But he cannot do an act mali ciously without at the same time doing it willfully. The malicious doing of an act in cludes the willful doing of it. Malice includes intent and will. State v. Robbins, 66 Me. 328. For other definitions see Shannon v. Jones, 76 Tex. 141, 13 S. W. 477; Williams v. Wil liams,, 20 Colo. 51, 37 Pac. 614; Smith v. Railroad Co., 87 Md. 48, 38 Atl. 1072; In re Freche (D. C.) 109 Fed. 621; Craft v. State, 3 Kan. 486; Lewis v. Chapman, 16 N. T. 369; State v. Avery, 113 Mo. 475, 21 S. W. 193; State v. Witt, 34 Kan. 488, 8 Pac. 769; State v. Walker, 9 Houst. (Del.) 464, 33 Atl. 227; Cotton v. State. 32 Tex. 614; Com. v. Chance, 174 Mass. 245, 54 N. E. 551, 75 Am. St Rep. 306. In the law of libel and slander. An evil intent or motive arising from spite or fll will; personal hatred or 111 will; culpable recklessness or a willful and wanton disre gard of the rights and interests of the per MAXFETRIA. In Spanish law. MALICE. In criminal law.