malice." 16 A person who intentionally does a wrongful act, knowing at the time that it is wrongful, does it wantonly.17 Wantonly includes wilfully, but is a broader term.18 It is not equivalent to feloniously.19 Its meaning in statutes defining and punishing particular offenses will be considered in the chapters dealing specifically with those offenses.20

§ 99. Malice-In general. The term malice as used in the criminal law is not restricted to its popular meaning of hatred, ill will or hostility to another, or general malignity.21 In its broadest legal sense it is almost, if not quite, synonymous with criminal intent, and denotes that condition of mind which is manifested by the intentional doing of a wrongful act without legal justification or excuse,22

or, as is often said, that state or condition of mind which shows a heart regardless of social duty and fatally bent on mischief.23 It is not always used in this broad sense, however, but in relation to some crimes is given a more restricted meaning, as, for example, in malicious mischief, where it is sometimes used in the sense of resentment or ill will towards the owner of the property destroyed or injured, or wantonness at least.24 It also has a particular meaning as applied to murder,25 and arson,26 and to many other offenses.27

Malice includes the idea of wilfulness. An act, to be malicious, must be done wilfully.28 But malice is the broader term, and a charge of wilfulness does not include, and is not equivalent to, a charge of malice.29 Nor is an act necessarily malicious because it is wrongful,30 nor because it is done with an unlawful or unjustifiable motive.31 Nor is the intentional doing of a wrongful act necessarily malicious.32

Metc. 93, 43 Am. Dec. 373; Com. v.
Snelling, 15 Pick. 337.

Missouri. State v. Prater, 130 Mo.
App. 348, 109 S. W. 1047; State v.
Grassle, 74 Mo. App. 313.

Nebraska. Alt v. State, 88 Neb. 259, 129 N. W. 432, 35 L. R. A. (N. S.) 1212; Housh v. State, 43 Neb. 163, 61 N. W. 571.

South Carolina. State v. Ferguson, 91 S. C. 235, 74 S. E. 502.

Tennessee. State V. Smith, 119 Tenn. 521, 105 S. W. 68.

Texas. Connell v. State, 46 Tex. Cr. 259, 81 S. W. 746; Powell v. State, 28 Tex. App. 393, 13 S. W. 599; Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087.

England. Rex v. Harvey, 2 Barn. & C. 268; Rex. v. Hunt, 1 Moody C. C. 93.

It is a wicked intent to do an injury." People v. Petheram, 64 Mich. 252, 31 N. W. 188.

It is "an intent to do injury to another," or "a design formed of doing injury to another." United States v. King, 34 Fed. 302.

See also the chapters dealing with the various specific crimes, and particularly chap. 19, §§ 599-723, infra.

23 State v. Prater, 130 Mo. App. 348, 109 S. W. 1047. And see § 616, infra.

24 See § 839, infra.
25 See § 616, infra.
26 See § 388, infra.

27 See United States v. Three Railroad Cars, 1 Abb. 196, Fed. Cas. No. 16,513, and the various chapters dealing with particular crimes (chaps. 9-47).

28 Glover v. People, 204 Ill. 170, 68 N. E. 464; State v. Willing, 129 Iowa 72, 105 N. W. 355; State v. Robbins, 66 Me. 324.

29 State v. Willing, 129 Iowa 72, 105 N. W. 355.

30 Malicious is not equivalent to wrongful. The former word means more than the latter. It necessarily involves crime, while the latter does not. State v. Churchill, 15 Idaho 645, 98 Pac. 853, 19 L. R. A. (N. S.) 835, 16 Ann. Cas. 947.

31 There may be and are many unlawful and unjustifiable motives which are not malicious. Nye v. People, 35 Mich. 16; State v. Dolan, 17 Wash. 499, 50 Pac. 472.

32 State v. Willing, 129 Iowa 72, 105 N. W. 355.

As a rule the malice need not be directed against any particular person, but may be deduced from an intent generally to injure.33 But in malicious mischief, according to some courts, the malice must be directed against the owner or possessor of the property, and mere general malice is not enough.84

Malice need not be proved by direct evidence, but may be inferred from the circumstances under which the act was committed.85

§ 100. Express and implied malice. Malice is generally divided into express and implied malice. Express malice is actual malice, or malice in fact, and exists when a person actually contemplates the injury or wrong which he inflicts.36 Implied malice, otherwise called constructive malice, or malice in law, is where the law implies or imputes malice because of the nature of the act done, and irrespective of the actual intent of the party.87 "Barbarity," said Lord Holt, "will often make malice." 88 And malice may be implied or inferred, independent of the actual intent, from reckless, wanton or cruel acts likely to cause injury.39 Implied malice is not a fact, but is an inference or conclusion founded upon the particular facts and circumstances of the case as they are found

33 State v. Blackburn, 7 Pennew. (Del.) 479, 75 Atl. 537; People v. Petheram, 64 Mich. 252, 31 N. W. 188; State v. Welch, 36 W. Va. 690, 15 S. E. 419. And see § 839, infra.

34 See § 838 et seq., infra.

35 People v. Jones, 241 Ill. 482, 89 N. E. 752, 16 Ann. Cas. 332; State v. Linde, 54 Iowa 139, 6 N. W. 168; People v. Olsen, 6 Utah 284, 22 Pac. 163. And see specific crimes, murder, etc.

The inference is not one of law for the court, but one of fact for the jury. People v. Jones, 241 Ill. 482, 89 N. E. 752, 16 Ann. Cas. 332.

36 Anthony v. State, Smedes & M. (21 Miss.) 264; Darry v. People, 10 N. Y. 120; People v. Clark, 7 N. Y. 393; State v. Thompson, 76 S. C. 116, 56 S. E. 789; Herrin v. State, 33 Tex. 638; Lewis v. State, 15 Tex. App. 647. And see § 619, infra.

37 Delaware. State v. Naylor, 5 Boyce 99, 90 Atl. 880; State v. Mills, 6 Pennew. 497, 69 Atl. 841.

South Carolina. State v. Thompson, 76 S. C. 116, 56 S. E. 789.

Texas. Connell v. State, 46 Tex. Cr. 259, 81 S. W. 746; Hubby v. State, 8 Tex. App. 597.

And see § 620, infra.

38 Keate's Case, Comb. (Eng.) 408. 39 Massachusetts. Com. v. Walden, 3 Cush. 558.

Mississippi. Porter v. State, 83 Miss. 23, 35 So. 218.

Missouri. State v. Prater, 130 Mo. App. 348, 109 S. W. 1047.

North Carolina. State v. Barnard, 88 N. C. 661.

Utah. People v. Olsen, 6 Utah 284, 22 Pac. 163.

And see § 630, infra.

to exist. In some jurisdictions malice is never implied or inferred as a matter of law, but its existence is in all cases a question for the jury.40

§ 101. Motive-In general. Motive has been defined to be an inducement, reason, cause or incentive for the doing of an act; 41 the moving power which impels to action for a definite result; 42 that which leads or tempts the mind to indulge in a criminal act.48 It is to be distinguished from intent, which, as we have seen, is the purpose or design with which an act is done, and involves the will.45

Motive is not an essential ingredient of any crime.46 The mere existence of a bad motive will not make an act a crime which would not be criminal without it.47 Nor will the mere existence of a motive on the part of the accused to commit the offense with which he is charged establish his guilt,48 nor the absence of a motive for

In one sense it is the condition of mind which incites to action, but it includes the inference as to the existence of such a condition, from an external fact of a nature to produce it. State v. Johnson, 139 La. 829, 72 So. 370.

42 People v. Corrigan, 195 N. Y. 1, 87 N. E. 792, rev'g 129 App. Div. 62, 113 N. Y. Supp. 504, and aff'g 129 App. Div. 75, 113 N. Y. Supp. 513; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193.

"The power which impels action to a definite result; the reason that moves the will and tempts the mind to indulge the criminal intent." Jones v. State, 13 Ala. App. 10, 68 So. 690. 48 Thompson v. United States, 144 Fed. 14, 7 Ann. Cas. 62.

"An inducement, or that which

leads or tempts the mind to do or commit the crime charged." Spicer v. State, 188 Ala. 9, 65 So. 972.

44 Jones v. State, 13 Ala. App. 10, 68 So. 690; State v. Santino, Mo. 186 S. W. 976; State v. David, 131 Mo. 380, 33 S. W. 28; People v. Corrigan, 195 N. Y. 1, 87 N. E. 792, rev'g 129 App. Div. 62, 113 N. Y. Supp. 504, and aff'g 129 App. Div. 75, 113 N. Y. Supp. 513; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193; People v. Hegeman, 57 N. Y. Misc. 295, 107 N. Y. Supp. 261. 45 See § 82, supra.

46 People v. Zammuto, 280 Ill. 225, 117 N. E. 454; State v. McHamilton, 128 La. 498, 54 So. 971; State v. Santino, Mo. 186 S. W. 976; People v. Corrigan, 195 N. Y. 1, 87 N. E. 792, rev'g 129 App. Div. 62, 113 N. Y. Supp. 504, and aff'g 129 App. Div. 75, 113 N. Y. Supp. 513.

47 State v. Asher, 50 Ark. 427, 8 S. W. 177; Harris v. Com., 113 Va. 746, 73 S. E. 561, 38 L. R. A. (N. S.) 458, Ann Cas. 1913 E 597.

committing it establish his innocence.49 Hence proof of motive is never essential to conviction, and, if the jury are satisfied that the defendant is guilty of the crime charged, the failure to show motive is not material, and they should convict him although no motive is shown.50 But the defendant's motive may always be inquired into