his own ignorance or the fraud of others, or that he signed the document by mistake or under duress.1

In the case of the deliberate use of a deadly weapon causing death, when it is shown that the killing was done by the defendant and no other evidence is offered on either side, malice will be presumed, and the act will constitute murder.' If, as is usually the case, other circumstances are presented in the evidence in connection with the killing, which is admitted or proved and which is not claimed to be excusable, then it is for the jury to say, upon all the evidence, whether malice was present or not, and this question they must decide upon all the facts in the case. In other words, a rebuttable presumption of malice arises as soon as the homicide is proved. This may become a conclusive presumption binding on the jury in case no defense is made. On the other hand, the presumption may be rebutted by other evidence of the state, while if such is not the case the accused may offer evidence to show that he did the killing in self-defense or while insane and thus remove the presumption of malice.

As regards minor crimes of which a criminal or malicious

1 Lake v. Ranney, 33 Barb. (N. Y.) State, 58 Miss. 778; State v. Swayze, 50, 68.

2 Com. v. Hawkins, 3 Gray, 463; Lewis v. State (Ga., 1893), 15 S. E. Rep. 697; Fritch v. State (Ga., 1893), 16 S. E. Rep. 102. Implied malice, i. e., a presumption of malice, exists where mischief is intentionally done without just cause or excuse. Darry v. People, 10 N. Y. 138.

3 State v. Patterson, 45 Vt. 308; State v. Ariel (S. C., 1893), 16 S. E. Rep. 779; Young v. State (Ala., 1892), 10 S. Rep. 913; Hart v. State, 17 S. W. Rep. 421; 21 Tex. App. 163; Hornsby v. State (Ala., 1892), 10 S. Rep. 522; State v. Carver (Oreg., 1892), 30 Pac. Rep. 315; People v. Knapp, 71 Cal. 1; People v. Tidwell, 4 Utah, 506; Powell v. State, 28 Tex. App. 393; People v. Odell, 46 N. W. Rep. 601; 1 Dak. 197; State v. Whitson, 111 N. C. 695; Hawthorne v.

30 La. Ann. 1323; State v. Smith, 77 N. C. 488; State v. Knight, 43 Me. 12; Stokes v. People, 53 N. Y. 164; Thomas v. People, 67 id. 218. Cf. Lovett v. State, 30 Fla. 142. "Whenever a homicide is shown to have been committed without lawful authority and with deliberate intent. it is sufficiently proved to have been with malice aforethought. It is not necessary to prove that any special or express hatred or malice was entertained by the accused toward the deceased. It is sufficient to prove that the act was done with deliberate intent as distinct from an act done under the sudden impulse of passion in the heat of blood and without previous malice." United States v. Guiteau, 10 Fed. Rep. 162. 165.

motive or intent is a constituent part, no presumption of malice is created where no statutory provision exists making the act criminal per se. If a malicious intent or motive is necessary it will have to be proved by the party on whom is cast the burden of proving the essential elements of the transaction in litigation. But this rule does not of course require direct evidence of malice, though such evidence may often be easy to procure in the shape of the express declarations of the accused. It is usually sufficient if facts are shown which evince a malevolent, or spiteful, or reckless disposition, and from these facts the jury may decide as a presumption or inference of fact that malice existed in the case.1

1" Thus in malicious prosecutions the term is quite comprehensive and includes many phases of wrong motive and conduct. There may be illwill, malevolence, spite, a spirit of revenge or a purpose to injure with out cause, but it is not necessary there should be. If the prosecution

is wilful, wanton or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy, it is malicious." Hamilton v. Smith, 30 Mich. 229.

§ 236. Judicial notice.- The doctrine of judicial notice, i. e., the knowledge which a court or judge will take officially of the truth of certain classes of facts without requiring proof thereof to be offered, is based upon the necessity for a speedy and inexpensive administration of justice. The time of the courts should not be taken up, nor should the parties to litigation be put to needless expense in taking evidence to prove facts which are merely collateral to the point in issue and which are within the knowledge of all persons of average education and intelligence. Of such facts the courts will take judicial notice. The primary effect of judicial notice is to dispense with the proof of some fact. To the extent that this is done the power of the jury as triers of fact is limited and circumscribed, and the power of the court to decide upon the existence of a fact as a matter of law, and by its decision to bind the jury, is correspondingly enlarged. To permit the court to take judicial notice of obvious or familiar facts is equivalent to enunciating a rule of law that such facts are to be considered by the jury as conclusively proved and as obligatory on them. This view of the matter is confirmed by the consistent practice of the courts in refusing not only to permit the introduction of evidence to prove the fact, but of evidence to disprove its truth as well.

But the amount of information which is required to constitute a man of average or ordinary education and intelligence

will vary greatly. Many facts may be notorious in one section of a large country which would not be known to wellinformed persons in another. The general rules, therefore, in regard to the facts which the courts will notice judicially are sometimes modified by the circumstances of the particular case to which it is sought to apply them.1

$237. Matter of common knowledge.-The courts will take judicial notice of the meaning of English words and phrases, abbreviations, and of legal expressions in common use. So, courts will take judicial notice of the recurrence of public holidays;" of the natural and artificial subdivisions of time; of the coincidence of the days of the month and week; 7 of the incidents of railroad travel; of the use of the telephone as a means of communication; of billiard tables for gaming purposes; 10 of the nature and value of the circulating medium.

irrespective of its legal-tender character;' of legal weights and measures; and that a litigant is an alien enemy. But the value of foreign currency unless fixed by act of congress," of a particular commodity," or of a person's services; the rates of exchange between cities; that "policy" is a game of chance; local rules for the measurement of grain; the habitual use 10 and location of city streets and plats," and other similar matters of limited and local notoriety, must be affirmatively shown.12

13

It has been held that though courts will take judicial notice of the natural expectation of life, as it is shown by mortality tables, they will not notice the present value of a life insurance policy which is ascertainable only after an intricate computation and the consideration of extrinsic circumstances.14 Facts of natural and uniform recurrence, such as the return of the seasons,15 the planting,16 growth, condition " and matu

1 Lampton v. Haggard, 3 Mon. 146; Gady v. State, 83 Ala. 51; State v. Grant, 55 Ala. 201 (coin); Bank v. Meagher, 33 Ala. 622; Perritt v. Couch, 5 Bush, 201 (value of United States treasury notes).

2 Pecks v. Simis, 22 N. E. Rep. 313. 3 Ince v. Beekman, 16 La. Ann. 352. The federal courts will take notice of the organization and existence of national banks. United States v. Williams, 4 Biss. 302.

4 Kermott v. Ayer, 11 Mich. 181. 5 Cook v. Decker, 63 Mo. 328. 6 Pearson v. Darrington, 32 Ala. 227.

7 Lowe v. Bliss, 24 Ill. 168.

8 State v. Selner, 17 Mo. App. 39.
9 South, etc. Co. v. Wood, 74 Ala.

449.

17

4 Mont. 412; Bell v. State, 1 Tex. App. 81 (location of hotels); Tison v. Smith, 8 Tex. 147; Wilcox v. Jackson, 109 Ill. 261; Perkins v. Rogers, 35 Ind. 124; St. Louis, etc. Co. v. Insurance Co., 33 Mo. App. 348; Richards v. Knight (Iowa, 1892), 42 N. W. Rep. 584 (maturity of crops); Endere v. McDonald (Ind., 1893), 31 N. E. Rep. 1056; Chicago, etc. Co. v. Champion, 33 id. 874; Bradford v. Floyd, 80 Mo. 207.

13 Kans. etc. Co. v. Phillips (Ala., 1893), 13 S. Rep. 65; Abell v. Pa. M. Ins. Co., 18 W. Va. 400; Gordon v. Tweedy, 74 Ala. 232.

14 Price v. Conn. M. L. Ins. Co., 48 Mo. App. 281.

15 Floyd v. Ricks, 14 Ark. 286, 292; 58 Am. Dec. 374; Raridan v. Rail

10 Cleveland v. Newsom, 45 Mich. road, 69 Iowa, 527; Patterson v. Mc

62.

11 Pennsylvania R. Co. v. Frana, 13 Ill. App. 91; Allen v. Scharringhausen, 8 Mo. App. 229; Cicotte v. Cruciaux, 52 Mich. 227.

12 Longes v. Kennedy, 2 Bibb (Ky.), 607 (local custom); Russell v. Hoyt,

Causland, 3 Bland (Md.), 69; Tom-
linson v. Greenfield, 31 Ark. 557;
Hunter v. New York, O. & W. R. R.
Co., 116 N. Y. 622.

16 Wetzel v. Kelly, 83 Ala. 440;
Loeb v. Richardson, 74 Ala. 311.
17 Ross v. Boswell, 60 Ind. 235.