Ramsey was charged with the offense of murder in the second degree, one element of which offense is the evincing of a depraved mind in the act of killing the deceased. Depravity of mind is an inherent deficiency of moral sense and rectitude. See Knepper v. Knepper, 139 Mo. App. 493, 122 S.W. Rep. 1117.
It is the equivalent of the statutory phrase "depravity of heart" which has been defined to be the highest grade of malice. See Lang v. State, 84 Ala. 1, 4 So.2d Rep. 193, 5 Am. St. Rep. 324.
The legal and technical sense of the word "malice" differs from its sense in ordinary or common speech. In the technical sense it is a term of art importing wickedness and excluding a just cause or excuse. See State v. Debolt, 104 Iowa, 105, 73 N.W. Rep. 499; Weaver v. Ficke, 174 Ky. 432, 192 S.W. Rep. 515; State v. Weeden, 133 Mo. 70, 34 So.2d Rep. 473; State v. Darling, 199 Mo. 168, 97 S.W. Rep. 592; State v. Spivey,132 N.C. 989, 43 S.E. Rep. 475; Davis v. State, 51 Nebr. 301, 70 N.W. Rep. 984.
That definition may be inaccurate because no just cause or excuse can be allowed for a wrongful act. Malice in law refers to that state of mind which is reckless of law and of the legal rights of the citizen in a person's conduct *Page 768 toward that citizen. See Colwell v. Tinker, 169 N.Y. 531, 62 N.E. Rep. 668, 58 L. R. A. 765.
It includes all acts wantonly or willfully done, that is, which any man of reason, knowledge and ability must know to be contrary to his duty. It is implied from wrongful and unjustifiable acts done on purpose or without just or legal excuse. See 38 C. J. 352.
It is obvious therefore that the phrase "evincing a depraved mind regardless of human life" as used in the statute denouncing murder in the second degree was not used in the legal or technical sense of the word "malice" as above defined. The phrase conveys the idea of "malice" in the popular or commonly understood sense of ill will, hatred, spite, an evil intent. It is the malice of the evil motive which the statute makes an ingredient of the crime of murder in the second degree. See Davis v. Hearst, 160 Cal. 143, 116 P. 530.
However severe the criticism may be of the conduct of the accused in killing young Ellis it cannot be justly said that it proceeded from an evil motive, from ill will, hatred or spite. It may have sprung from a flame of hottest indignation, outraged decency, humiliating insult, produced by a drunken vulgarian's obscene conduct toward the daughter of his host, but emotions of that kind cannot properly be said to be the product of an evil mind, a vicious, corrupt, base, perverse, malicious motive which may be said to characterize a "depraved mind regardless of human life."
The evidence in the case does not tend to establish in the slightest degree the depraved quality of mind in the accused when firing the shot which killed the youth named Ellis necessary to the commission of murder in the second degree.
The case of Holton v. State, 87 Fla. 65, 99 So.2d Rep. 244, was decided upon the proposition that the evidence for *Page 769 the State, consisting of certain circumstances pointed out in the opinion, were not conclusive of the falsity of the defendant's account of the killing of John Slaughter. It was pointed out in the opinion that if the circumstances had been sufficient to overcome the defendant's story and refute it in detail it would have left him with nothing to stand on but a practical confession of murder in the first degree which the jury evidently could not accept.
In the case at bar the evidence is practically undisputed as to the circumstances of the shooting and in my opinion it fails wholly to establish in the accused that depravity of mind essential to conviction of murder in the second degree.
So the judgment should be reversed.
DAVIS, C. J., and WHITFIELD, TERRELL and BROWN, J. J., concur.
BUFORD, J., dissents.