MALICE. In Criminal Law. The doing “, wrongful act intentionally without just cause or excuse. 4 Barnew. & C. 255 ; 9 Mete. Mass. 104.
A conscious violation of the law, to the prejudice of another. 9 Clark & F. Hou. L. 321.
Malice is never understood to denote general malevolence or unkindness of heart, or enmity to ward a particular individual, hut it signifies rather the intent from which flows any unlawful and in jurious act committed without legal justification. 15 Pick. Maes. 337; 9 Meta. 410; 4 Ga. 14; 33 Me. 331; 7 Ala. N. s. 728; 2 Dev. No. C. 425; 2 Rich. So. C. 179; 1 Dall. Penn. 335; 4 Mas. C. C. 115; I Den. Cr. Cas. 63; Russ. & R. 26, 465; 1 Mood. Cr. Cm. 93. It is not confined to the intention of doing an injury to any particular pereon, but ex. tends to an evil design, e, corrupt and wicked notion against some one at the time of committing the crime : as, if A intending to poison B, conceals a quantity of poison in an apple and puts it in the way of B, and C, against whom he has no ill will, and who, on the oontrary, is his friecd, happens to eat it and dies, A will be guilty of murdering C with malice aforethought, Bacon, Max. Reg. 15; 2 Chitty, Crim. Law, 727; 3 id. 1104.
Express malice exists when the party evinces an intention to commit the crime. 3 Bulstr. 171.
Implied malice is that inferred by law from the facts proved. 11 Humphr. Tenn. 172 ; 6 Blackf. lid. 299 ; 1 East, Pl. Cr. 371.
It is implied in every case of intentional homicide ; and the fact of killing being first proved, all the circumstances of accident, necessity or informality are to be satisfac torily established by the party charged, unless they arise out of the evidence produced against him to prove the homicide, and the circum stances attending it. If there are, in fact, circumstances of justification, excuse, or pal liation, such proof will naturally indicate them. But where the fact of killing is proved by satisfa,ctory evidence, and there are no cir cumstances disclosed tending to show justifi cation or excuse, there is nothing to rebut the natural presumption of malice. It is material
to the just understanding of this rule that it applies only to cases Where the killing is proved and nothing further is shown; for if the circumstances disclosed tend to extenuate the act, the prisoner has the full benefit of such facts. 9 Mete. Mass. 93 ; 5 Cush. Mass. 295 ; 3 Gray, Mass. 463.
3. It is a general rule that when a man commits an act, unaccompanied by any cir cumstances justifying its commission, the law presumes he has acted advisedly and with an intent to produce the consequences which have ensued. And therefore the intent to kill is conclusively inferred from the deliberate violent use of a deadly weapon. 9 Metc. Mass. 103 ; 5 Cush. Mass. 305. See 3 Maule & S. 15 ; 1 Russ. & R. Cr. Cas. 207; 1 Wood. Cr. Cas. 263 ; 1 East, Pl. Cr. 223, 232, 340 ; 15 Viner, Abr. 506.
In Torts. The doing any act injurious to another without a just cause.
4. This term, as applied to torts, does not neces sarily mean that which must proceed from a spite ful, malignant, or revengeful disposition, but a con duct injurious to another, though prooeeding from an ill-regulated mind not sufficiently cautious before it 000asions an injury to another. 11 Berg. & R. Penn.39,40. Indeed, in some eases it seems not to require any intention in order to make en act mali cious. When a slander has been published, there fore, the proper question for the jury is, not whether the intention of the publication was to injure the plaintiff, hut whether the tendenoy of the matter published was so injurious. 10 Barnew. (la C. 472. Again, take the common ease of an offensive trade, the melting of tallow, for instance : such trade is not itself unlawful, but if carried on to the annoyance of the neighboring dwellings, it becomes unlawful with respect to them, and their inhabitants may maintain an action, and may charge the aot of the defendant to he malicious. 3 Barnew. & C. 584.