a statute punished any person who should "willfully" obstruct a highway, it was held that the term applied where a highway was intentionally obstructed without reasonable. grounds to believe the obstruction to be lawful, and that it was no defense that the accused was acting under the orders of a superior officer of a railroad company, and without any evil intent.31

Generally, however, the term "willful" does mean something more than voluntary or intentional. It implies a guilty mind. It implies, at least, that the act is done without justification or excuse, and it generally implies, to some extent, an evil mind or intent.32 Thus, when used in a penal statute in

31 Sanders v. State, 31 Tex. Cr. R. 525; Sneed v. State, 28 Tex. App. 56.

In State v. Clark, 102 Iowa, 685, it was held that whether the refusal of a vote by election officers was with or without just grounds for believing the refusal to be lawful was altogether immaterial in determining whether the refusal was "willful," within a statute making officers of election guilty of a misdemeanor in "willfully" refusing the vote of a person who should comply with the requisites prescribed by law to prove his qualifications. 32 Felton v. U. S., 96 U. S. 699; State v. Preston, 34 Wis. 675; City of Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 246; U. S. v. Three

reference to a person who shall neglect or fail to discharge a duty or perform an act enjoined, the term implies that the party shall have the ability to discharge the duty or perform the act. A person who is unable to comply with a statute because of physical or financial inability to do so is not guilty of "willfully" violating it.33 Among other statutes in which the term "willful" has been construed as meaning something more than voluntary or intentional are statutes punishing the willful killing of another's animals,34 the willful mu

Railroad Cars, 1 Abb. U. S. 196, Fed. Cas. No. 16, 513; Com. v. Kneeland, 20 Pick. (Mass.) 206, 220; Thomas v. State, 14 Tex. App. 200; State v. Abram, 10 Ala. 928; McManus v. State, 36 Ala. 285. 33 City of Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 246.

34 In a Texas case, where the defendant was charged under a statute with willfully and wantonly killing another's sheep, and it was claimed in defense that he killed them to prevent them from injuring his own property, it was held that this might be a good defense. The court said: "Of course he killed them intentionally, but it is not every intentional act that is a willful or wanton act. When used in a penal statute, the word "willful" means more than it does in common parlance. It means with evil intent, or legal malice, or without reasonable ground for believing the act to be lawful. In common parlance, it is used in

tilation of a person, 35 or the willful obstruction of a highway,36 and statutes punishing

the sense of "intentional," as distinguished from "accidental or "involuntary." To make the killing of the sheep, therefore, a willful act, it must have been committed with an evil intent, with legal malice, and without legal justification. To make the killing a wanton act, it must have been committed regardless of the rights of the owner of the sheep, in reckless sport, or under such circumstances as evinced a wicked or mischievous intent, and without excuse." Thomas v. State, 14 Tex. App. 200.

35 State v. Abram, 10 Ala. 928.

36 Thus, in State v. Preston, 34 Wis. 675, it was held that the willful obstruction of a highway, for which a penalty was provided by statute, did not include the case of an obstruction created in good faith by a landowner, believing that no highway existed at the place, and acting under the advice and direction of the town supervisors, who were charged by law with the general direction and control of highways in the town. The court said in this case: "It is contended that the term "will fully," as here used, signifies no more than "voluntarily" or "purposely," thus distinguishing the act of obstructing made penal from one which may be said to have been accidental, which last alone it was the design of the statute not to punish. The word "willfully," as used to denote the intent with which an act is done, is undoubtedly susceptible of different shades of meaning or degrees of intensity, according to the context and evident pur

willful homicide,37 willful blasphemy,38 willful voting by a person not qualified to vote,3

etc.

61. Wantonness.

39

A wanton act is something more than a willful act. It has been defined to be an act committed in disregard of the rights of others, in a reckless spirit, or under circumstances which evince a lawless, wicked, or mischievous intent.40

62. Malice.

(a) In General.-In its popular sense, the term "malice" means hatred, ill-will, or hostility to another, but this is not necessarily its meaning in law. In its broadest legal sense it is almost, if not quite, synonymous with "criminal intent," and means the state

pose of the writer. It is sometimes so modified and reduced as to mean little more than plain “intentionally" or "designedly." Such is not, however, its ordinary signification when used in criminal law and penal statutes. It is there most frequently understood, not in so mild a sense, but as conveying the idea of legal malice in greater or less degree, that is, as implying an evil intent without justifiable excuse."

37 McManus v. State, 36 Ala. 285.

38 Com. v. Kneeland, 20 Pick. (Mass.) 206, 220.

39 Com. v. Bradford, 9 Metc. (Mass.) 268.

40 Thomas v. State, 14 Tex. App. 200.

of mind of a person, irrespective of his motive, whenever he consciously violates the law. In this broad sense, every person who is sui juris, and who, without justification or excuse, willfully does an act which is prohibited and made punishable by law as a crime, does the act maliciously.41 Malice, in its legal sense, said Chief Justice Shaw, "characterizes all acts done with an evil disposition, a wrong and unlawful motive and purpose; the willful doing of an injurious act without lawful excuse.” 42 Malice includes the idea of

41 Rex v. Harvey, 2 Barn. & C. 268; Com. v. Snelling, 15 Pick. (Mass.) 337; Com. v. York, 9 Metc. (Mass.) 93; State v. Grassle, 74 Mo. App. 313; Hollander v. State, 12 Fla. 117; Gallagher v. State, 28 Tex. App. 247; Powell v. State, 28 Tex. App. 393.

42 Com. v. York, 9 Metc. (Mass.) 93.

In Com. v. Snelling, 15 Pick. (Mass.) 337, 340, it was said by Chief Justice Shaw, in a prosecution for criminal libel: "In a legal sense, any act done willfully and purposely to the prejudice and injury of another, which is unlawful, is, as against that person, malicious. It is not necessary, to render an act malicious, that the party be actuated by a feeling of hatred, and pursue any general bad purpose or design. On the contrary, he may be actuated by a general good purpose, and have a real and sincere design to bring about a reformation of manners; but if, in pursuing that design, he