Page:The New International Encyclopædia 1st ed. v. 12.djvu/834

* ItALIC ACTD. 74=3 MALICIOUS PSOSECUTION. substances. But whatever the way m Av^iich it is made, it is found, ou ex:imination, to be noth- in" but an intimate mixture of precisely equal pa'rts of the first two modilicalions. It is optical- ly inactive because its components turn the plane o"£ polarized light in opposite directions and so neutralize each other's rotatory power. Though very similar in most of its properties to the Icvo-rotaton- modilication, it is found to be less soluble in water, to crystallize somewhat more readily, and to form crystals that are not de- liquescent. The separation of its oiiiponents may be ellected by the crystallization of their ciuchoninc salts, which dillVr from each other considerahlv in their physical properties. Chemically, malic acid is a hydroxy-derivative of succinic "acid, into which it is readily con- verted by the action of hydriodic acid at a hi^h temperature. The chemical relationship of malic and succinic acids is shown by their constitution- al fomiulas: CH(II).COOH CH,.COOH J„ CHj-COOH Malic scid According to the theory of (q.v. ), the existence of three CHj.COOH Succinic acid stereochemistry modifications of malic acid is due to the fact that the molecule of the acid contains a carbon atom to which four ditlcrcnt atomic groups are linked: viz. H, OH, COOll, and CIl/XJOU. MALICE (OF., Fr. malice, from Lat. malitia, badness, from malus, bad). While malice in the ordinary sense means an evil dis|)osition or state of minii of one j)erson towanl another, in law it denotc's a particular stale of mind wOiich ])rccede3 and causes an illegal act. In general, malice in law may be said to be the conscious violation of law to "the prejudice of another, or it may be the state of mind involved in the ciimmissiou of an act witliout regard to its consequence and with- out regard to social duty and the rights of others. It will be seen that malice does not necessarily involve express intent to commit a wrongful act or conscious violation of law, although it may do so, and usually does. Thus, one who de- liberately plans to "destroy another's property is guilty oif malicious injury to property if lie car- ries <mt his phin; but he would also be guilty of the same ofTen.se if there had lu-en no intent or plan to destroy property if he did the act in reckless disregard of the" safety of the property. The so-called doctrine of constructive intent applies to malice. Malice may be cither implied or expressed. Im- plied malice is that in which the malicious state of mind is presumed from the commission of the act with which the defendant is cliargcd. Thus murder, which is a crime of implied malice, may be proved by proving that the defendant com- mitted the homicide without apparent legal jus- tification. Jlalice in the civil law of torts is im- plied malice. Express malice is that which re- quires to be expressly proved and which is not established by mere proof of the act with which a defendant is charged. Most statutory crimes requiring malice are of this character. Thus in case of malicious injury to property the malice must be expressly proved. This, however, may be, and usually is, accomplished by proving cir- cumstances surrounding or afTecting the commis- sion of the act, but not from proof of the act alone. The common-law crimes of malice are libel, murder, and arson; and there are now numerous statutory malicious crimes, of which malicious mischief and malicious injury to property are common examples. Libel, slander, slander of title, malicious prosecution, false arrest, abuse of process, are all torts involving malice in their conuuission, but as has been pointed out the malice is presumed from the tortious act. Ex- press malice of a tort-feasor may be the liasis for a verdict of the jury awarding punitive or viudictive damages (q.v.). See the articles treat- ing of the subjects mentioned above, and con- sult the authorities there cited. MALICIOTTS MISCHIEF. In its broadest sense, "any malicious or mischievous physical in- jury to tlie riglits of another or to those of the public." Whether it was an indictable otTcnse at cummon law is disputed; but it has long been a purely statutory offense both in England and in the United States. One of the leading English statutes is laiown as the Black Act. from u state- ment in the preamble that "several ill-designing and disorderly persons have of late associated themselves under the name of blacks." This and a large number of other statutes were replaced in 1801 by a criminal consolidation act (24 and 25 Vict., c. 97), which, with its amendments, ex- tends the offense of malicious mischief to mali- cious injuries to most buildings, to fish-ponds, and various other classes of real property, and to almost anv species of personal property. In the United States most of the State statutes are as sweeping and detailed in their prorisions as those of England. In a few jurisdictions, how- ever, the offense is confined to a limited class of injuries to personal property. The intent with which the injury is inflicted must be malicious. As a rule, that term is used in this connection in its ordinary sense ; that is. actual malice, not technical legal malice, must lie shown. Acording to Blackstone, the injury must be done "either out of a spirit of wanton cruelty or black and diabolical revenge." The Sujireme Court of Massachusetts has declared that malice, in this connection, is "not sufficiently defined as the willful doing of an act prohibited by law for which the defendant has no lawful excuse, but the jurj' must be satisfied that the injury was done out of "a spirit of cruelty, hostility, or revenge." Jloreovcr, the malice must be entertained against the owner of the property, not against a third person or the property injured. These doctrines are modified in some States, especially where the statutes define the offense to consist in the willful inllietion of unlawful injurj'. Occasionally a statute makes secrecy in doing the hnrm an essential element of the crime. In all jurisdic- tions it is a perfect defense that the injury was inflicted in the discharge of ofliicial duty, or under an honest though mistaken claim of right. The offense is ordinarily classed as a misdemeanor (q.v.), although, at'times, it is declared a felony (q.v.). Consult: Ilnrris, Piiiiciplci of the Crimi- nal Late (London, 1809) ; Bishop, Commenfnnes on the ham of .Sfntutory Crimes (Chicago, 1901) ; MeClain, Treatise on the Criminal jMir, as otc Administered in the United States (Chi- cago, 1897). MALICIOTTS PROSECUTION. The civil wrong or tort (q.v.) of having prosecuted a per- son unsuccessfully, maliciously, and without