152 Page – American State Trials 1918 Volume X Leo Frank Document

Here is the translated text as follows:

120 X. AMERICAN STATE TRIALS.

In its legal sense, the term "malice" signifies an evil design in general, a wicked and corrupt motive, an intention to do evil. Blackstone, in his Commentaries, states, "That it is the dictate of a wicked, depraved, and malignant heart." Russell, in his "Treatise on Crimes" (vol. 2, p. 482), explains, "It is not to be understood merely in the sense of a principle of malevolence to particulars, but as meaning that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit; a heart regardless of social duty and deliberately bent on mischief." In general, any formed design of doing mischief may be called malice; therefore, not only such killing as proceeds from premeditation, hatred, or revenge against the person killed, but also in many other cases, such killing as is accompanied with circumstances that show the heart to be perversely wicked, is adjudged to be of malice prepense, and consequently murder. Wharton, in his Law of Homicide, states, "Malice in its legal sense denotes a wrongful act done intentionally or without just cause and excuse." Chief Justice Shaw of Massachusetts says, "Malice, although in its popular sense means hatred, ill-will, or hostility to another, yet in its legal sense has a very different meaning and characterizes all acts done with an evil disposition and a wrong and unlawful motive or purpose, the wilful doing of an injurious act without lawful excuse."

It will thus be seen that law writers and jurists agree as to the meaning of the word "malice," though they use different language to express the same idea. The definition by Wharton is brief and readily understood and signifies every intentional wrongful act for which no just cause or excuse can be given. Malice may be either express or implied; express, when the act is done with a sedate, deliberate mind and formed design. Deliberation and premeditation denote, in themselves, malice. Implied malice will be better understood by a few examples laid down in the books. Thus, if one kills an officer of justice in the execution of his duty, or any of his assistants endeavoring to conserve the peace, or any private person assisting him, it is murder by implied malice.

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