The State’s petition for writ of certiorari seeking to review and revise the decision and judgment of the Court of Criminal Appeals in Lowery v. State of Alabama, 54 Ala.App. -, 317 So.2d 357, was granted on the ground that “a material question requiring decision is one of first impression in Alabama.”
The Court of Criminal Appeals reversed and remanded defendant’s conviction for murder in the second degree holding that the trial judge erred in charging the jury that:
“Malice, in the common acceptation, malice means hatred or ill will toward another; but in law, malice means a wrongful act purposefully done and without just cause or legal excuse. Malice is an ingredient of murder.”
In its opinion, the Court of Criminal Appeals wrote:
“Contrary to the above definition, malice is not an act; malice in law is a state of mind. The definition given to the jury was misleading. First degree manslaughter under certain circumstances could consist of a ‘wrongful act purposefully done and without just cause or legal excuse.’ Some of the jurors could have found the facts to be sufficient to constitute a crime no greater than first degree manslaughter and, under the circumstances, would be compelled to return a verdict of murder under the preceding definition of malice given by the trial court. The foregoing definition of malice seems to be the only attempt by the court to explain the term, either in his oral charge or in any of the requested charges. The appellant’s counsel duly excepted to the oral charge in this particular.”
The trial judge’s charge is almost identical to a charge found in the 1893 case of Boulden v. State, 102 Ala. 78, 15 So. 341, wherein this Court held that the following charge correctly defines “malice” in its legal sense and was properly given:
“(5) T charge you, gentlemen of the jury, that malice, in its common acceptation, means ill-will against a person, but in its legal sense means a wrongful act, *349done intentionally, without just cause or excuse.’ ”
The only material distinction between the two charges is use of “purposefully” in the instant case and use of “intentionally” in Boulden. This is a distinction without a difference.
Two cases appear in Shepard’s Alabama Citations as having cited or followed Boulden: McGuffin v. State, 178 Ala. 40, 59 So. 635 (1912) and Patterson v. State, 156 Ala. 62, 47 So. 52 (1909).
In McGuffin, this Court held there was no error in giving the following charge:
“ * * * ‘Malice, in law, does not necessarily mean hate or ill will, but is defined as any unlawful act willfully done, without just cause or legal excuse. It is that mental state or condition which prompts the doing of an unlawful act without legal justification or extenuation.’ (Citations omitted.)”
Patterson and Boulden were cited as authority.
In Patterson, an almost identical charge was involved, viz.:
“ * * * ‘I charge you, gentlemen of the jury, that malice in law does not necessarily mean hate or ill will, but is defined as any unlawful act willfully done, without just cause or legal excuse. It is that mental state or condition which prompts the doing of an unlawful act without legal justification or extenuation.’ ”
In holding there was no error in giving this charge, Justice Denson wrote for the Court in Patterson:
“ * * * When the case was here on a former appeal, this charge, with the exception of the last sentence, was presented for review; but the court, finding reversible errors in the record aside from a consideration of the charge, after suggesting that malice might be so defined on another trial as to exempt the definition from the criticism in the Cribbs Case [Cribbs v. State], 86 Ala. 613, 6 So. 109, declined to decide whether or not, if the charge were the pivotal point, the judgment would be reversed thereon. The charge considered in the Cribbs Case was in this language: ‘Malice, in law, does not necessarily mean hatred or ill will, but the intentional doing of an unlawful act.’ It is manifest, as was said by the court in that case, that the definition of malice as there given would constitute every intentional and unlawful homicide malicious, though committed in heat of passion excited by sufficient provocation. And the court, in concluding the discussion, gave a definition of legal malice in this language: ‘Malice, as an ingredient of murder, may be defined, in legal phrase, as the killing of a human being without legal justification, excuse, or extenuation.’
This brings out clearly the defect in the definition of malice that was under discussion there, and shows that it consisted in the fact that lack of excuse or extenuation was not hypothesized. In this view, we think the Cribbs Case is not only not condemnatory of the charge in judgment here, but it is an authority in support of its correctness. The charge is also fully and precisely supported by Boulden’s Case, 102 Ala. 78, 86, 15 So. 341, and likewise finds support in Stoball’s Case [Stoball v. State], 116 Ala. 454, 23 So. 162. See, also, authorities cited to the point in Boulden’s Case. The court committed no error in giving the charge.”
The Cribbs case, referred to in Patterson, supra, holds that the giving of an oral instruction by a court that “malice, in law, does not necessarily mean hatred or ill will, but the intentional doing of an unlawful act” is reversible error unless it contains the added phrase, “without legal justification, excuse, or extenuation.” Had such phrase not been substantially covered in the instant charge, the latter would have been bad.
Thus, Boulden is direct authority for the proposition that the giving of a charge *350identical in all material respects to that given in the present is not reversible error.
In both McGuffin and Patterson, there were almost identical charges with the additional clause, “It is that mental state or condition which prompts the doing of an unlawful act without legal justification or extenuation” which the Court of Criminal Appeals says clarifies the ambiguity in defining “malice” to be an act. No doubt this additional phrase makes for a better instruction although we are unwilling to hold that without it the giving of the instant charge constituted reversible error.
Moreover, charges of similar import have been held to be proper to give and to be sustained by authority in Coates v. State, 1 Ala.App. 35, 56 So. 6 (1911) where the charge was, inter alia,
“ * * * malice, as an ingredient of murder, does not necessarily mean hatred or ill will, but it is the unlawful and willful killing of a human being without any legal excuse or extenuation.”
and in Stoball v. State, 116 Ala. 454, 23 So. 162 (1897) where the charge was, inter alia,
“ * * * ‘Malice,’ as the word is used in courts of law, signifies a wrongful act done intentionally, without legal justification or excuse. The word, as commonly used in the every day affairs of life, has, I believe, the meaning of personal hatred, or ill will. This is something more than its meaning here. * * * ft
As the reason for its reversal, it is suggested by the Court of Criminal Appeals that “some of the jurors could have found the facts to be sufficient to constitute a crime no greater than first degree manslaughter and, under the circumstances, would be compelled to return a verdict of murder under the preceding definition of malice given by the trial court.”
In view of the court’s oral instructions on “malice” and on the various degrees of manslaughter and murder, particularly manslaughter in the first degree, this suggestion appears unfounded. The court instructed the jury, inter alia:
“Manslaughter in the first degree, as it’s known and designated in the law, is this: it is the intentional and unlawful killing of a human being by another; and is distinguished from murder by the absence of malice, in manslaughter. If the killing of the deceased was prompted by malice on the part of the Defendant, then the killing cannot be manslaughter, but is murder. Manslaughter is the unlawful killing of another without malice, either expressed or implied — which may be either voluntary, or from the sudden heat of passion — or involuntary, but in the commission of an unlawful act. It simply means the voluntary and unlawful depriving of a human being of his life.”
It must be concluded that if the trial judge, in his oral instruction on “malice” in the instant case, had left out the phrase “without just cause or legal excuse” (as in the Cribbs case) the Court of Criminal Appeals’ rationale for reversal would be valid. This was the exact situation in Redden v. State, 7 Ala.App. 33, 60 So. 992 (1913) where the trial judge charged:
“ ‘Malice in law is the intentional doing of a wrongful or unlawful act.’ ”
In reversing the cause, the Court of Appeals held:
“ * * * That definition of the malice which is an essential ingredient of the offense of murder is materially incorrect. Under that definition, every intentional and unlawful killing of a human being would be murder, though the act was committed in the heat of passion excited by sufficient provocation; for the intent accompanying the voluntary killing of a human being to be malicious within the meaning of the law defining murder, there must be an absence of any legal justification, excuse, or extenuation. The intent described in the statement excepted to may accompany a homicide which does not rise above the grade of manslaughter. Patterson v. *351State, 156 Ala. 62, 47 So. 52; Cribbs v. State, 86 Ala. 613, 6 So. 109. * * * ” [Emphasis supplied.]
Motion of defendant to dismiss the petition for writ of certiorari is denied. The judgment of the Court of Criminal Appeals is reversed and remanded.
Motion denied. Reversed and remanded.
HEFLIN, C. J., and MERRILL, MADDOX, FAULKNER, and SHORES, JJ., concur. JONES, J., dissents. ALMON and EMBRY, JJ., recuse themselves.