Malice aforethought

For the novel, see Malice Aforethought.

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Malice aforethought is the "premeditation" or "predetermination" that was required as an element of some crimes in some jurisdictions,^[1] and a unique element for first-degree or aggravated murder in a few.^[1]

Legal history

Malice aforethought was the mens rea element of murder in 19th-Century America,^[2][3] and remains as a relic in those states with a separate First-degree murder charge.^[4]

As of 1891, Texas courts were overwhelmed with discussing whether "malice" needs to be expressed or implied in the judge's jury instructions.^[5]

Modern law

In English law the mens rea requirement of murder is an intention to commit an act (or omission) and that there is a "high degree of probability" that such act or omission will result in the death or serious injury of another person.^[6]

To varying extents in the United States, the requisite intention can also be found where the perpetrator acts with gross recklessness showing lack of care for human life, commonly referred to as "depraved heart murder",^[4] or during the commission of or while in flight from any felony or attempted felony (termed felony murder.) In England, such mens rea would only found a verdict of reckless or constructive manslaughter.

Note that through the principle of transferred intent, an accused who intended to kill one person but inadvertently killed another instead is still guilty of murder. The intent to kill the first person suffices.

In most common law jurisdictions, the American Law Institute's Model Penal Code, and in the various US state statutes which have codified homicide definitions, the term has been abandoned although the meaning remains the mens rea requirement for murder.

References

1. ^ ^{a b} The Free Legal Dictionary, citing, West's Encyclopedia of American Law, edition 2. Accessed November 15, 2010.
2. ^ Thomas Welburn Hughes, A treatise on criminal law and procedure (1919) § 110, p. 72. Found at Google Books. Accessed November 15, 2010.
3. ^ See The Free Legal Dictionary, citing, John Bouvier A Law Dictionary, Adapted to the Constitution and Laws of the United States (1856), citing Fost. 424; Yelv. 205; 1 Chit. Cr. Law, *242, 2 Chit. Cr. Law, *787; 1 East, Pl. Or. 402. 2 Mason, R. 91. Accessed November 15, 2010.
4. ^ ^{a b} malice aforethought in Nolo's Plain-English Law Dictionary. Accessed November 15, 2010.
5. ^ See Ainsworth v. State, 16 S.W. 652 (Tex. 1891), Washington v. State, 16 S.W. 653 (Tex. 1891), Mendez v. State, 16 S.W. 766, 767 (Tex. 1891), and Martinez v. State, 16 S.W. 767, 768 (Tex. 1891), found at Google Books. Accessed November 15, 2010.
6. ^ R v Walker & Hayles [1990]).