malice – intent to commit a wrongful act; reckless disregard of the law or of a person’s legal rights

     This page is continued from Criminal Law Self-Help >>>> Legal Terms pertaining to Assessing Varying Degrees of Crimes:


n. (14c)

1. The intent, without justification or excuse, to commit a wrongful act.

2. Reckless disregard of the law or of a person’s legal rights.

3. Ill will; wickedness of heart.  *  This sense is most typical in nonlegal contexts. — aka (in sense 2) abandoned and malignant heart; abandoned heart; malignant and abandoned heart. [1]

1. A state of mind, being ill will, hatred, or hostility entertained by one person toward another. 34 Am J1st Mal § 2.

More precisely, that state of mind which prompts the intentional doing of a wrongful act without legal justification or excuse. State v Heinz, 223 Iowa 1241, 275 NW 10, 114 ALR 959; Sall v State, 157 Neb 688, 61 NW2d 256.

As a mental element in crime: — sometimes a connotation of ill will, but frequently merely the state of mind prompting a wrongful act without legal justification or excuse. 21 Am J2d Crim L § 86.

As an element of murder: — -a condition of mind prompting one to commit or direct an act willfully; a wicked and corrupt disregard of the lives and safety of others; including all those states and conditions of mind accompanying a homicide committed without legal excuse or extenuation. 26 Am J1st Homi §40.

An intent to do the deceased great bodily harm. Commonwealth v Buzard, 365 Pa 511, 76 A2d 394, 22 ALR2d 846.

As an element of malicious prosecution: — either personal malice or the malice indicated by an improper motive. 34 Am J1st Mal Pros § 45.

Not necessarily ill will, hatred, or express malice, but a want of probable cause. Schnathorst v Williams, 240 Iowa 561, 36 NW2d 739, 10 ALR2d 1199.

As an ingredient of libel or slander: — malice in law; malice in fact or express malice. 33 Am J1st L & 8 § 111.

Importing a publication that is false and without legal excuse. Dixon v Allen, 69 Cal 527, 529.

As an element of alienation of affections: — any wrongful or improper motive or intent to do a wrongful or improper act; not limited to a malignant and revengeful disposition and intent. 27 Am J1st H & W § 530.

As an element of wrongful and malicious attachment: — either actual malice or legal malice. Brown v Guaranty Estates Corp. 239 NC 595, 80 SE2d 645, 40 ALR2d 1094.

An improper motive, not necessarily positive malignity; a wilful disregard of the rights of another, whether in accomplishing an unlawful purpose or a lawful purpose by an unlawful means. 6 Am J2d Attach § 598. [2]

     Excerpt from John Salmond’s Jurisprudence (Glanville L. Williams ed., 10th ed. 1947):

     “Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such an intent is, in the language of the law, malicious, and this legal usage has etymology in its favour. The Latin malitia means badness, physical or moral wickedness in disposition or in conduct — not specifically or exclusively ill-will or malevolence; hence the malice of English law, including all forms of evil purpose, design, intent, or motive.  [But] intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive.  The term malice is applied in law to both these forms of intent, and the result is a somewhat puzzling ambiguity which requires careful notice.  When we say that an act is done maliciously, we mean one of two distinct things.  We mean either that it is done intentionally, or that it is done with some wrongful motive. [4]

     Rollin M. Perkins & Ronald N. Boyce’s Criminal Law (3d ed. 1982):

    “[M]alice in the legal sense imports

(1) the absence of all elements of justification, excuse or recognized mitigation, and
(2) the presence of eithe

(a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or
(b) the wanton and wilful doing of an act with awareness of a plain and strong likelihood that such harm may result. . . .

     The Model Penal Code does not use ‘malice’ because those who formulated the Code had a blind prejudice against the word.  This is very regrettable because it represents a useful concept despite some unfortunate language employed at times in the effort to express it. [5]

Various Types of Malice:

general malice (17c) Malice that is necessary for any criminal conduct; malice that is not directed at a specific person.  Cf. particular malice.

implied malice – (17c) Malice inferred from a person’s conduct. — aka constructive malice; legal malice; presumed malice; malice in law.  Cf. actual malice (1). [1]

malice in law – The intentional performance of an act harmful to another without just or lawful cause or excuse. Brown v Guaranty Estates Corp. 239 NC 595, 80 SE2d 645, 40 ALR2d 1094.

The intent unlawfully to take human life in cases where the law neither mitigates nor justifies the killing. Mann v State, 124 Ga 760, 53 SE 324.

The wilful violation of a known contract right. 30 Am J Rev ed Interf § 27.

A wicked or mischievous intention; a wanton inclination to mischief; an intention to do wrong or injury to another; a depraved inclination to disregard the rights of others. Morasca v Item Co. 126 La 426, 52 So 565.

As an ingredient of libel or slander: — a presumption of malice arising from the use of certain words, not necessarily inconsistent with an honest or even laudable purpose, implying neither ill will, personal malice, hatred, nor a purpose to injure. 33 Am J1st L & S § 111. [2]

murderous malice – Any one of seven types of malice: (1) the intent to kill the person actually killed; (2) the intent to kill A, but causing death to B; (3) the intent to kill someone, but not any particular victim (see universal malice); (4) the intent to do an act intrinsically likely to kill, though without the intent of killing and with the intent to hurt; (5) intent to do an act intrinsically likely to kill, though without the intention of hurting anyone (for example, dropping a concrete block from an overpass without looking to see whether cars are passing underneath); (6) the intent to commit a felonious act of violence against an unwilling victim; or (7) formerly, the intent to commit an act not likely to kill, with the intent of opposing a police officer who is trying to arrest a suspect.

particular malice (16c) Malice that is directed at a particular person. — aka special malice.

transferred malice (1961) Malice directed to one person or object but instead harming another in the way intended for the first.

     Excerpt from John Salmond’s Jurisprudence (Glanville L. Williams ed., 10th ed. 1947):

     “[I]f A shoots at B intending to kill him, but the shot actually kills C, this is held to be murder of C. So also if A throws a stone at one window and breaks another, it is held to be malicious damage to the window actually broken. This doctrine, which is known as the doctrine of transferred malice, applies only where the harm intended and the harm done are of the same kind. If A throws a stone at a human being and unintentionally breaks a window, he cannot be convicted of malicious damage to the window.[6]

universal malice (17c) The state of mind of a person who determines to take a life on slight provocation, without knowing or caring who may be the victim.

malice aforethought – intent to kill or injure, or deliberate commission of a dangerous or deadly act in disregard of peoples’ lives or safety. — aka premeditated malice; preconceived malice; malice prepense; malitia praecogitata.

express malice – intent to kill or inflict injury arising from a deliberate, rational mind, or, in defamation cases, uttering or publishing a defamatory statement that is false, or with reckless disregard about whether the statement is true. — aka malice in fact; actual malice.

malice exception (1977) A limitation on a public official’s qualified immunity, by which the official can face civil liability for willfully exercising discretion in a way that violates a known or well-established right.  See qualified immunity under IMMUNITY (1).

malicious adj. (13c) 1. Substantially certain to cause injury.  2. Without just cause or excuse. [1]

1. Actuated by malice. Wicked and perverse. Commonwealth v York, 50 Mass 93.

Intentional in reference to the commission of a wrongful act by one person toward another, without legal justification or excuse. 34 Am J1st Mal § 2. [2]

malicious abandonment See ABANDONMENT (4).

malicious accusation See ACCUSATION.

malicious act (17c) An intentional, wrongful act done willfully or intentionally against another without legal justification or excuse.

malicious arrest See ARREST (2).

malicious assault with a deadly weapon See ASSAULT.

malicious bankruptcy See BANKRUPTCY (2).

malicious damage See MALICIOUS MISCHIEF.

malicious defense See DEFENSE (2).

malicious execution See EXECUTION (4).

malicious injury See INJURY.

malicious killing ( 17c) An intentional killing without legal justification or excuse. — aka killing with malice.

maliciously adv. (14C) 1. In a spirit of ill will.  2. With malice aforethought.  See MALICE AFORETHOUGHT.

malicious mischief (18c) The common-law misdemeanor of intentionally destroying or damaging another’s property.  *  Although modern statutes predominantly make this offense a misdemeanor, a few make it a felony (depending on the nature of the property or its value).  See Model Penal Code § 220.3. — aka malicious mischief and trespass; malicious injury; malicious trespass; malicious damage; maliciously damaging the property of another; (in the Model Penal Code) criminal mischief.  See MISCHIEF. [1]

The wilful and unlawful injury to or destruction of the property of another with the malicious intent to injure the owner; a malicious physical injury to the rights of another, which impairs utility or materially diminishes value; a malicious or mischievous physical injury, either to the rights of another or to those of the public in general. 34 Am J1st Mal Mis § 2.

As used in an insurance policy: — wilful or malicious physical injury to or destruction of the insured property; a reckless disregard of the owner’s rights in deliberately injuring his property. General Acci. Fire & Life Assur. Corp. v Azar, 103 Ga App 215, 119 SE2d 82.

As to what constitutes “malicious mischief” within the meaning of an automobile comprehensive policy, see Anno: 43 ALR2d 604. [2]

     Excerpt from Rollin M. Perkins & Ronald N. Boyce, Criminal Law 405 (3d ed.1982):

     “Such phrases as ‘malicious mischief and trespass,’ ‘malicious injury,’ and ‘maliciously damaging the property of another,’ are merely additional labels used at times to indicate the same offense.  It was a misdemeanor according to the common law of England, although some confusion has resulted from Blackstone’s statement that it was ‘only a trespass at common law.’  Before the word ‘misdemeanor’ became well established the old writers tended to use the word ‘trespass’ to indicate an offense below the grade of felony.  And it was used at times by Blackstone for this purpose, as in the phrase ‘treason, felony, or trespass. [9]

malicious motive See MOTIVE.

malicious prosecution – institution of a criminal or civil proceeding for an improper purpose, without probable cause. 

  • abuse of process – improper, intentional, tortious use of civil or criminal process to obtain a result that is either unlawful or beyond the purpose for which such process was designed. — aka abuse of legal process; malicious abuse of process; malicious abuse of legal process; wrongful process; wrongful process of law.

Malicious Shooting or Stabbing Act See ELLENBOROUGH’a ACT.

malicious technology – Any electronic or mechanical means, esp. software, used to monitor or gain access to another’s computer system without authorization for the purpose of impairing or disabling the system.  *  Examples of malicious technology are Trojan horses, time-outs, keystroke logging, and data-scrambling devices. -Also termed malware.

malitia [Latin “malice”] Hist. An actual evil design; express malice.  *  Malitia originally signified general wrongdoing, and did not describe a wrongdoer’s state of mind; malitia praecogitata, for example, indicated only the seriousness of the offense, though it was eventually rendered malice aforethought.

malitia capitalis [Latin] Hist. Deadly malice.

malitia praecogitata See MALICE AFORBTHOUGHT. – aka malitia excogitata. [1]

     Excerpt from Frederick Pollock & Frederic W. Maitland’s The History of English Law Before the Time of Edward l (2d ed. 18 ):

     “[T]he word felony is often coupled with what will in the future be another troublesome term of art, to wit, malice aforethought or malice prepense (malitia excogitata, praecogitata). . . . When it first came into use, it hardly signified a state of mind; some qualifying adjective such as praemeditata or excogitata was needed if much note was to be taken of intention or of any other psychical fact. When we first meet with malice prepense it seems to mean little more than intentional wrong-doing; but the somewhat weighty adjectives which are coupled with malitia in its commonest context -adjectives such as excogitata are, if we mistake not, traces of the time when forsteal, guetapens, waylaying, the setting of ambush, was (what few crimes were) a specially reserved plea of the crown to be emended, if indeed it was emendable, by a heavy wire. [13]

See actual malice; express malice; general malice; implied malice; particular malice; wilful and malicious act. [2]


malicious abuse of process – A wilful and intentional abuse or misuse of process to attain an objective which is unlawful in itself or beyond the purposes for which the process may be legally employed. Anno: l4 ALR2d 322; 1 Am J2d Abuse P § 6.

malicious act – A wrongful act intentionally done without legal justification or excuse. High v State, 26 Tex App 545, 10 SW 238; 9 Am J2d Bankr § 786 (relating to liability excepted from discharge in bankruptcy).

An act committed in a state of mind which shows a heart regardless of social duty and fatally bent on mischief. Bowers v State, 24 Tex App 542, 7 SW 249.

malicious arrest – The term applied where the arrest on which an action for malicious prosecution is based was under civil, not criminal, process; an action not essentially different from an action for malicious prosecution. Waters v Winn, 142 Ga 138, 82 SE 537.

Causing an arrest by maliciously bringing a suit upon false charges, or maliciously making false affidavit. Everett v Henderson, 146 Mass 89, 14 NE 932.

malicious attachmentSee malice; probable cause.

malicious burning – An essential element of common. law arson. 5 Am J2d Arson § 11.

An act of setting fire performed with a condition of mind that shows a heart regardless of social duty and bent on mis~ chief, evidencing a design to do an intentional Wrongful act toward another, or toward the public, without legal justification or excuse. Love v State, 107 Fla 376, 144 So 843.

malicious injury – A wrongful injury intentionally inflicted by one person upon another. State ex rel. Durner v Huegin, 110 Wis 189. See wilful and malicious injury.

malicious interference with contractSee interference.

maliciously – With harmful motive and in wilful disregard of the rights of others. 34 Am J1st Mal § 2.

For some purposes the equivalent of “willfully and unlawfully.” Chapman v Commonwealth, (Pa) 5 Wharton 427; 27 Am J1st Indict § 67.

malicious misconduct – The wrong of an election officer for which he may be held liable to electors or to a candidate for public office. 25 Am J2d Elect §§ 47 et seq. See malicious mischief. [2]


Disclaimer: All material throughout this website is compiled in accordance with Fair Use.

[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition
 by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: John Salmond, Jurisprudence 384 (Glanville L. Williams ed., 10th ed. 1947).

[5]: Rollin M. Perkins & Ronald N. Boyce, Criminal Law 860 (3d ed. 1982).

[6]: John Salmond, Jurisprudence 382 (Glanville L. Williams ed., 10th ed. 1947).


[9]: Rollin M. Perkins & Ronald N. Boyce, Criminal Law 405 (3d ed.1982).

[10]: Martin L. Newell, A Treatise on the Law of Malicious Prosecution, False Imprisonment, and the Abuse of Legal Process 6 (1892).

[11]: J.F. Lever, “Means, Motives and interests in the Law of Torts,” in Oxford Essays in Jurisprudence 62-63 (A.G. Guest ed., 1961).

[12]: 52 Am. Jur. 2d Malicious Prosecution § 2, at 187 (1970).

[13]: 2 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward l 468-69 (2d ed. 18 ).


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