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A wicked intention to do an injury. It is not confined to theintention of doing an injury to any particular person, but extends to anevil design, a corrupt and wicked notion against some one at the time ofcommitting the crime; as, if A intended to poison B, conceals a quantityof poison in an apple and puts it in the way of B, and C, against whomhe had no ill will, and who, on the contrary, was his friend, happenedto eat it, and die, A will be guilty of murdering C with maliceaforethought.
Malice is express or implied. It is express, when the party evincesan intention to commit the crime, as to kill a man; for example, modernduelling. It is implied, when an officer of justice is killed in thedischarge of his duty, or when death occurs in the prosecution of someunlawful design.
It is a general rule that when a man commits an act, unaccompanied byany circumstance justifying its commission, the law presumes he hasacted advisedly and with an intent to produce the consequences whichhave ensued.
Torts. The doing any act injurious to another without a just cause.
This term, as applied to torts, does not necessarily mean that whichmust proceed from a spiteful, malignant, or revengeful disposition, buta conduct injurious to another, though proceeding from an ill-regulatedmind not sufficiently cautious before it occasions an injury to another.
Indeed in some cases it seems not to require any intention in orderto make an act malicious. When a slander has been published, therefore,the pro-per question for the jury is, not whether the intention of thepublication was to injure the plaintiff, but whether the tendency of thematter published, was so injurious.
Again, take the common case of an offensive trade, the melting oftallow for instance; such trade is not itself unlawful, but if carriedon to the annoyance of the neighboring dwellings, it becomes unlawfulwith respect to them, and their inhabitants may maintain an action, andmay charge the act of the defendant to be malicious.