{"id":13282,"date":"2018-02-08T00:24:36","date_gmt":"2018-02-08T00:24:36","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=13282"},"modified":"2018-07-02T02:20:49","modified_gmt":"2018-07-02T02:20:49","slug":"13282-2","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=13282","title":{"rendered":"malice – intent to commit a wrongful act; reckless disregard of the law or of a person\u2019s legal rights"},"content":{"rendered":"

\u00a0\u00a0\u00a0\u00a0 This page is continued from Criminal Law Self-Help<\/a> >>>> Legal Terms pertaining to Assessing Varying Degrees of Crimes<\/a>:<\/span><\/strong><\/p>\n

**********************<\/span><\/p>\n

malice<\/span>:<\/strong><\/span>
\nn<\/em>. (14c)<\/span><\/p>\n

1. The intent, without justification or excuse, to commit a wrongful act. <\/span><\/strong><\/p>\n

2. Reckless disregard of the law or of a person\u2019s legal rights. <\/span><\/strong><\/p>\n

3. Ill will; wickedness of heart.\u00a0 *\u00a0 This sense is most typical in nonlegal contexts.<\/strong> \u2014 aka (in sense 2) abandoned and malignant heart<\/strong><\/em><\/span>; abandoned heart<\/span><\/strong><\/em>; malignant and aban<\/strong><\/em><\/span><\/span>doned heart<\/strong><\/em><\/span>. [1]
\n<\/span><\/p>\n

1. A state of mind, being ill will, hatred, or hostility entertained by one person toward another. 34 Am J1st Mal \u00a7 2<\/span>. <\/span><\/strong><\/p>\n

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

As a mental element in crime: \u2014 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 \u00a7 86<\/span>. <\/span><\/strong><\/p>\n

As an element of murder: \u2014 -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 \u00a740<\/span>. <\/span><\/strong><\/p>\n

An intent to do the deceased great bodily harm. Commonwealth v Buzard<\/em>, 365 Pa 511, 76 A2d 394, 22 ALR2d 846<\/span>. <\/span><\/strong><\/p>\n

As an element <\/span><\/strong>of malicious prosecution: \u2014 either personal malice or the malice indicated by an improper motive. 34 Am J1st Mal Pros \u00a7 45<\/span>. <\/span><\/strong><\/p>\n

Not necessarily ill will, hatred, or express malice, but a want of probable cause. Schnathorst v Williams<\/em>, 240 Iowa 561, 36 <\/span><\/span><\/strong>NW2d 739, 10 ALR2d 1199<\/span>. <\/span><\/strong><\/p>\n

As an ingredient of libel or slander: \u2014 malice in law; malice in fact or <\/span><\/strong>express malice. 33 Am J1st L & 8 \u00a7 111<\/span>. <\/span><\/strong><\/p>\n

Importing a publication that is false and without legal excuse. Dixon v Allen<\/em>, 69 Cal 527, 529<\/span>. <\/span><\/strong><\/p>\n

As an element of alienation of affections: \u2014 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 \u00a7 530<\/span>. <\/span><\/strong><\/p>\n

As an element of wrongful and malicious attachment: \u2014 either actual malice or legal malice. Brown v Guaranty Estates Corp<\/em>. 239 NC 595, 80 SE2d 645, 40 ALR2d 1094<\/span>. <\/span><\/strong><\/p>\n

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 \u00a7 598<\/span>.<\/span><\/strong>\u00a0[2]<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 Excerpt from John Salmond’s Jurisprudence<\/em><\/a> (Glanville L. Williams ed., 10th ed. 1947):<\/strong><\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 \u201cMalice 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<\/em> means badness, physical or moral wickedness in disposition or in conduct \u2014 not specifically or exclusively ill-will or malevolence; hence the malice of English law, including all forms of evil purpose, design, intent, or motive.\u00a0 [But] intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive.\u00a0 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.\u00a0 When we say that an act is done maliciously, we mean one of two distinct things.\u00a0 We mean either that it is done intentionally, or that it is done with some wrongful motive.<\/span>\u201d<\/strong> [4]<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Rollin M. Perkins & Ronald N. Boyce’s Criminal Law<\/em><\/a> (3d ed. 1982):<\/span><\/strong><\/p>\n

\u00a0\u00a0\u00a0 \u201c[M]alice in the legal sense imports<\/span><\/span><\/strong><\/p>\n

(1) the absence of all elements of justification, excuse or recognized mitigation, and
\n(2) the presence of eithe<\/span><\/span><\/strong><\/p>\n

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

\u00a0\u00a0\u00a0\u00a0 The Model Penal Code does not use \u2018malice\u2019 because those who formulated the Code had a blind prejudice against the word.\u00a0 This is very regrettable because it represents a useful concept despite some unfortunate language employed at times in the effort to express <\/span><\/span><\/strong>it.<\/span>\u201c<\/strong> [5]<\/span><\/p>\n

Various Types of Malice: <\/span>
\n<\/strong><\/span><\/p>\n

general malice<\/span> –<\/strong> (17c) Malice that is necessary for any criminal conduct; malice that is not directed at a specific person.<\/strong>\u00a0 Cf. particular malice.<\/span><\/p>\n

implied malice<\/strong><\/span> – (17c) Malice inferred from a person\u2019s conduct.<\/strong> \u2014 aka constructive malice<\/strong><\/em><\/span>; legal malice<\/span><\/strong><\/em>; presumed malice<\/span><\/strong><\/em>; malice in law<\/span><\/strong><\/em>.\u00a0 Cf. actual malice <\/span>(1). [1]
\n<\/span><\/p>\n

malice in law<\/span> – The intentional performance of an act harmful to another without just or lawful cause or excuse. Brown v Guaranty Estates Corp<\/em>. 239 NC 595, 80 SE2d 645, 40 ALR2d 1094<\/span>. <\/strong><\/span><\/p>\n

The intent unlawfully to take human life in cases where the law neither mitigates nor justifies the killing. Mann v State<\/em>, 124 Ga 760, 53 SE 324<\/span>. <\/strong><\/span><\/p>\n

The wilful violation of a known contract right. 30 Am J Rev ed Interf \u00a7 27<\/span>. <\/strong><\/span><\/p>\n

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<\/em> Co. 126 La 426, 52 So 565<\/span>. <\/strong><\/span><\/p>\n

As an ingredient of libel or slander: \u2014 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 \u00a7 111<\/span>.<\/strong> [2]<\/span><\/p>\n

murderous malice<\/span> – 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.<\/span><\/strong><\/p>\n

particular malice<\/span> –<\/strong> (16c) Malice that is directed at a particular person. <\/strong>\u2014 aka special malice<\/span><\/strong><\/em>.<\/span><\/p>\n

transferred malice<\/span> –<\/strong> (1961) Malice directed to one person or object but instead harming another in the way intended for the first.<\/strong><\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 Excerpt from John Salmond’s Jurisprudence<\/em><\/a> (Glanville L. Williams ed., 10th ed. 1947):<\/span><\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0 \u201c[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.<\/span>\u201d <\/span><\/strong>[6]<\/span><\/p>\n

universal malice<\/span> –<\/strong> (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.<\/strong><\/span><\/p>\n

malice aforethought<\/span><\/a> – intent to kill or injure, or deliberate commission of a dangerous or deadly act in disregard of peoples’ lives or safety.<\/strong> \u2014 aka premeditated malice<\/span><\/strong><\/em>; preconceived <\/strong><\/em><\/span><\/span>malice<\/strong><\/em><\/span>; malice prepense<\/strong><\/em><\/span>; malitia praecogitata<\/strong><\/em><\/span>.<\/span><\/p>\n

express malice<\/span><\/a> – 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.<\/span> <\/span><\/strong>\u2014 aka malice in fact<\/span><\/strong><\/em>; actual malice<\/span><\/strong><\/em>.<\/span><\/span>
\n<\/strong><\/p>\n

malice exception<\/span> –<\/strong> (1977) A limitation on a public official\u2019s 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.<\/strong>\u00a0 See qualified immunity<\/em> under IMMUNITY (1). <\/span><\/p>\n

malicious <\/span>–<\/strong> adj<\/em>. (13c) 1. Substantially certain to cause injury.\u00a0 2. Without just cause or excuse. <\/strong>[1]<\/span><\/p>\n

1. Actuated by malice. Wicked and perverse. Commonwealth v York<\/em>, 50 Mass 93<\/span>. <\/strong><\/span><\/p>\n

Intentional in reference to the commission of a wrongful act by one person toward another, without legal justification or excuse. 34 Am J1st Mal \u00a7 2<\/span>. <\/strong>[2]<\/span><\/p>\n

malicious abandonment<\/span> –<\/strong> See ABANDONMENT (4). <\/span><\/p>\n

malicious accusation<\/span> –<\/strong> See ACCUSATION.<\/span><\/p>\n

malicious act<\/span> –<\/strong> (17c) An intentional, wrongful act done <\/strong><\/span>willfully or intentionally against another without legal justification or excuse.<\/span><\/strong><\/p>\n

malicious arrest<\/span> –<\/strong> See ARREST (2).<\/span><\/p>\n

malicious assault with a deadly weapon<\/span> –<\/strong> See ASSAULT. <\/span><\/p>\n

malicious bankruptcy<\/span> –<\/strong> See BANKRUPTCY (2). <\/span><\/p>\n

malicious damage<\/span> –<\/strong> See MALICIOUS MISCHIEF. <\/span><\/p>\n

malicious defense<\/span> –<\/strong> See DEFENSE (2).<\/span><\/p>\n

malicious execution<\/span> –<\/strong> See EXECUTION (4).<\/span><\/p>\n

malicious injury<\/span> –<\/strong> See INJURY.<\/span><\/p>\n

malicious killing<\/span> –<\/strong> ( 17c) An intentional killing without legal justification or excuse.<\/strong> \u2014 aka killing with malice<\/span><\/strong><\/em>.<\/span><\/p>\n

maliciously <\/span>–<\/strong> adv<\/em>. (14C) 1. In a spirit of ill will.\u00a0 2. With malice aforethought.<\/strong>\u00a0 See MALICE AFORETHOUGHT.<\/span><\/p>\n

malicious mischief<\/span> –<\/strong> (18c) The common-law misdemeanor of intentionally destroying or damaging another\u2019s property.\u00a0 *\u00a0 Although modern statutes predominantly make this offense a misdemeanor, a few make it a felony <\/strong><\/span>(depending on the nature of the property or its value).<\/strong>\u00a0 See Model Penal Code \u00a7 220.3.<\/strong> \u2014 aka malicious <\/span><\/strong><\/em><\/span>mischief and trespass<\/span><\/strong><\/em>; malicious injury<\/span><\/strong><\/em>; malicious trespass<\/span><\/strong><\/em>; malicious damage<\/strong><\/em><\/span>; maliciously damaging the property of another<\/strong><\/em><\/span>; (in the Model Penal Code) criminal mischief<\/strong><\/em><\/span>.\u00a0 See MISCHIEF. [1]
\n<\/span><\/p>\n

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 \u00a7 2<\/span>. <\/strong><\/span><\/p>\n

As used in an insurance policy: \u2014 wilful or malicious physical injury to or destruction of the insured property; a reckless disregard of the owner\u2019s rights in deliberately injuring his property. General Acci. Fire & Life Assur. Corp. v Azar<\/em>, 103 Ga App 215, 119 SE2d 82<\/span>. <\/strong><\/span><\/p>\n

As to what constitutes \u201cmalicious mischief\u201d within the meaning of an automobile comprehen<\/strong><\/span>sive policy, <\/strong>see Anno: 43 ALR2d 604<\/span>.<\/strong> [2]<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 Excerpt from Rollin M. Perkins & Ronald N. Boyce, Criminal Law<\/em><\/a> 405 (3d ed.1982):<\/span><\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0 \u201cSuch phrases as \u2018malicious mischief and trespass,\u2019 \u2018malicious injury,\u2019 and \u2018maliciously damaging the property of another,\u2019 are merely additional labels used at times to indicate the same offense.\u00a0 It was a misdemeanor according to the common law of England, although some confusion has resulted from Blackstone\u2019s statement that it was \u2018only a trespass at common law.\u2019\u00a0 Before the word \u2018misdemeanor\u2019 became well established the old writers tended to use the word \u2018trespass\u2019 to indicate an offense below the grade of felony.\u00a0 And it was used at times by Blackstone for this purpose, as in the phrase \u2018treason, felony, or trespass.<\/span>\u201d<\/strong> [9]<\/span><\/p>\n

malicious motive<\/span> –<\/strong> See MOTIVE.<\/span><\/p>\n

malicious prosecution<\/span><\/a> – institution of a criminal or civil proceeding for an improper purpose, without probable cause.\u00a0<\/span><\/strong><\/p>\n