Malice Or Malicious

JurisdictionMaryland

IV. Malice or malicious

Malice is the intentional doing of a wrongful act without justification, excuse, or mitigation. Chisley v. State, 202 Md. 87, 105 (1953).

A. Non-murder criminal offenses containing malice

For non-murder criminal offenses with a malice mental state, there is a split of authority whether these offenses are general intent offenses or specific intent offenses.

1. Arson

Common law

The mental state for common law arson was malice. Butina v. State, 4 Md. App. 313, 316 (1968). For those jurisdictions interpreting malice, in arson, as a general intent offense, the mental state is a wanton and reckless disregard for the safety of others through a wanton and reckless disregard for their habitation. DeBettencourt v. State, 48 Md. App. 522, 523 (1981).

Maryland

In 1979, Maryland interpreted malice, in arson, to require specific intent to harm a person. In Brown v. State, 285 Md. 469, 474-75 (1979), the Court of Appeals held that for a burning to be both "willful and malicious," the act must be both "intentional" (willful) and "intended to bring harm to another person." (malicious).

In 1994, common law arson was replaced by five "malice" statutes, including first degree arson, second degree arson, first degree malicious burning of personal property, second degree malicious burning of personal property, and trash container burning. Each of these offenses has a mental state of "willfully and maliciously," defined as "acting intentionally, knowingly, and purposely" (willfully) and "acting with a specific intent to harm a person or property" (maliciously). Md. Code Ann., Crim. Law §§ 6-101(c) and (e), 6-102 to 6-105, and 6-108.

2. Malicious destruction of property

Common law

The mental state for common law malicious destruction of property was malice. Shell v. State, 307 Md. 46, 64-65 (1986), abrogated on other grounds by Price v. State, 405 Md. 10 (2008). For those jurisdictions interpreting malice, in malicious destruction of property, as a general intent offense, the mental state is a wanton and reckless disregard for property rights of another, i.e., a property endangering state of mind.

Maryland

Maryland's statutory malicious destruction of property has a mental state of willfully and maliciously. Md. Code Ann., Crim. Law § 6-301(a); MPJI-Cr 4:20. Since 1986, Maryland has interpreted willfully, in malicious destruction of property, to require a specific intent to injure another's property. In re Taka C., 331 Md. 80, 83-84 (1993); Shell, 307 Md. at 64-65.

3. Mayhem

Common law

The mental state for common law mayhem was malice. For those jurisdictions interpreting malice, in mayhem, as a general intent offense, the mental state is a wanton and reckless disregard for the safety of others, specifically parts of the body necessary to defend the king or oneself.

Maryland

In State v. Jenkins, 307 Md. 501, 515 (1986), the Court of Appeals held that mayhem requires a specific intent to maim, disfigure, or disable. In 1996, common law mayhem was abrogated and replaced by...

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