Waysman

Defendant was informed against for the crime of murder, and upon his trial was convicted by the jury of murder in the second degree and was sentenced to-imprisonment for fifteen years. Pie appeals from the judgment. The evidence taken in the case is not before us. The-errors complained of relate exclusively to certain indicated instructions, given or refused by the court.

1. The court instructed the jury as follows: “The word ‘malice’ imports a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.”

It is contended that the malice which enters into the crime of murder, as an essential element thereof, and as referred torn sections 187 and 188 of the Penal Code, is something more-than malice which simply “imports a wish to vex, annoy, or injure another person”; thát the malice stated in the instruction could be predicated of a very trivial act which would wholly fail to manifest “a deliberate intention unlawfully to take away the life of a fellow-creature”; or from which it might be implied that “no considerable provocation appears,” or which would fail to show “an abandoned and malignant heart.” (Civ.…