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Malice aforethought

Malice aforethought is the "premeditation" or "predetermination" (with malice) that was required as an element of some crimes in some jurisdictions, and a unique element for first-degree or aggravated murder in a few.

Malice is a legal term referring to a party's intention to do injury to another party. Malice is either expressed or implied. Malice is expressed when there is manifested a deliberate intention unlawfully to take away the life of a human being. Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. Cal. Pen.Code 188. Malice, in a legal sense, may be inferred from the evidence and imputed to the defendant, depending on the nature of the case.

In many kinds of cases, malice must be found to exist in order to convict (for example malice is an element of the crime of arson in many jurisdictions). In civil law cases, a finding of malice allows for the award of greater damages, or for punitive damages. The legal concept of malice is most common in Anglo-American law, and in legal systems derived from the English common law system.

In English civil law (being the law of England and Wales), relevant case law in negligence and misfeasance in a public office includes Dunlop v. Woollahra Municipal Council [1982] A.C. 158; Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food [1986] Q.B. 716; Jones v Swansea City Council [1990] 1 WLR 1453; Three Rivers District Council and Others v Governor and Company of The Bank of England [2000][1] and Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] 2 QB 335 in which Steyn LJ. found that malice could be made out if the acts were done with an actual intention to cause injury. Malice could be shown if the acts were done in the knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause injury. Malice would also exist if the acts were done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury. These elements, with respect, are consistent with the views of the majority albeit that some of those views were expressed tentatively having regard to the basis upon which the case before them was presented.

In English criminal law on mensrea (Latin for "guilty mind"), R v. Cunningham (1957) 2 AER 412 was the pivotal case in establishing both that the test for "maliciously" was subjective rather than objective, and that malice was inevitably linked to recklessness. In that case, a man released gas from the mains into adjoining houses while attempting to steal money from the pay-meter:

In any statutory definition of a crime, malice must be taken ... as requiring either:

an actual intention to do the particular kind of harm that in fact was done; or

recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).

Lord Diplock confirmed the relationship to recklessness in R v Mowatt (1968) 1 QB 421:

In the offence under section 20 of the Offences against the Person Act 1861, the word "maliciously" does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, i.e. a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.

In the United States, the malice standard was set in the Supreme Court case of New York Times Co. v. Sullivan, allowing free reporting of the civil rights campaign. The malice standard decides whether press reports about a public figure can be considered defamation or libel.

Malice aforethought was the mensrea element of murder in 19th-Century America, and remains as a relic in those states with a separate First-degree murder charge.

As of 1891, Texas courts were overwhelmed with discussing whether "malice" needs to be expressed or implied in the judge's jury instructions. However, the 1970s revision of the Texas Penal Code corrected this as "intentionally or knowingly" are the requisite mental state for murder in Texas. See Texas Penal Code Section 19.02.

In English law the mensrea requirement of murder is either an intention to kill or an intention to cause grievous bodily harm. In R v Moloney, Lord Bridge held that, intent, as defined in the mensrea requirement of murder 'means intent,' therefore the jury should simply use the term intent legally as they would in normal parlance. Furthermore, in Moloney, Lord Bridge held that, for the defendant to have the mensrea of murder, there must be something more than mere foresight or knowledge that death or serious injury is a "natural" consequence of the current activities: there must be clear evidence of an intention. This element of intention is not only fulfilled when the defendant's motive or purpose was to cause death or serious bodily harm (also known as 'direct intent,') but also when the defendant's motive or purpose was not to cause death or grievous bodily harm, but (as held by Lord Steyn in R v Woollin) death or serious bodily harm was a 'virtual certainty' of the defendant's act, and the defendant appreciated this to be so (also known as 'oblique intent.')

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", or during the commission of or while in flight from any felony or attempted felony (termed felony murder.) In England, such mensrea would only find 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 mensrea requirement for murder.


Murder is the unlawful killing, with malice aforethought, of another person, and generally this state of mind distinguishes murder from other forms of unlawful homicide (such as manslaughter). As the loss of a human being inflicts enormous grief upon the individuals close to the victim, and the commission of a murder is highly detrimental to the good order within society, most societies both present and in antiquity have considered it a most serious crime worthy of the harshest of punishment. In most countries, a person convicted of murder is typically given a long prison sentence, possibly a life sentence where permitted, and in some countries, the death penalty may be imposed for such an act though this practice is becoming less common. In most countries, there is no statute of limitations for murder (no time limit for prosecuting someone for murder). A person who commits murder is called a murderer.

William Blackstone (citing Edward Coke), in his Commentaries on the Laws of England set out the common law definition of murder, which by this definition occurs when a person, of sound memory and discretion, unlawfully kills any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied.

The elements of common law murder are:



of a human

by another human

with malice aforethought.

The Unlawful This distinguishes murder from killings that are done within the boundaries of law, such as an execution, justified self-defense, or the killing of enemy soldiers during a war.

Killing At common law life ended with cardiopulmonary arrest the total and permanent cessation of blood circulation and respiration. With advances in medical technology courts have adopted irreversible cessation of all brain function as marking the end of life.

of a human This element presents the issue of when life begins. At common law a fetus was not a human being. Life began when the fetus passed through the birth canal and took its first breath.

by another human at early common law suicide was considered murder. The requirement that the person killed be someone other than the perpetrator excluded suicide from the definition of murder.

with malice aforethought originally malice aforethought carried its everyday meaning a deliberate and premeditated killing of another motivated by ill will. Murder necessarily required that an appreciable time pass between the formation and execution of the intent to kill. The courts broadened the scope of murder by eliminating the requirement of actual premeditation and deliberation as well as true malice. All that was required for malice aforethought to exist is that the perpetrator act with one of the four states of mind that constitutes "malice."

The four states of mind recognized as constituting "malice" are:

Intent to kill,

Intent to inflict grievous bodily harm short of death,

Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or

Intent to commit a dangerous felony (the "felony-murder" doctrine).

Under state of mind (i), intent to kill, the deadly weapon rule applies. Thus, if the defendant intentionally uses a deadly weapon or instrument against the victim, such use authorizes a permissive inference of intent to kill. In other words, "intent follows the bullet." Examples of deadly weapons and instruments include but are not limited to guns, knives, deadly toxins or chemicals or gases and even vehicles when intentionally used to harm a victim.

Under state of mind (iii), an "abandoned and malignant heart", the killing must result from defendant's conduct involving a reckless indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury. An example of this is a 2007 law in California where an individual could be convicted of third-degree murder if he or she kills another person while operating a motor vehicle while being under the influence of alcohol, drugs, or controlled substances.

Under state of mind (iv), the felony-murder doctrine, the felony committed must be an inherently dangerous felony, such as burglary, arson, rape, robbery or kidnapping. Importantly, the underlying felony cannot be a lesser included offense such as assault, otherwise all criminal homicides would be murder as all are felonies.

Many jurisdictions divide murder by degrees. The most common divisions are between first and second degree murder. Generally, second degree murder is common law murder, and first degree is an aggravated form. The aggravating factors of first degree murder are a specific intent to kill, premeditation, and deliberation. In addition, murder committed by acts such as strangulation, poisoning, or lying in wait are also treated as first degree murder.

As with most legal terms, the precise definition of murder varies between jurisdictions and is usually codified in some form of legislation.

At common law

According to Blackstone, English common law identified murder as a public wrong. At common law, murder is considered to be malum in se, that is an act which is evil within itself. An act such as murder is wrong/evil by its very nature. And it is the very nature of the act which does not require any specific detailing or definition in the law to consider murder a crime.

Some jurisdictions still take a common law view of murder. In such jurisdictions, precedent case law or previous decisions of the courts of law defines what is considered murder. However, it tends to be rare and the majority of jurisdictions have some statutory prohibition against murder.


Unlawful killings without malice or intent are considered manslaughter.

Justified or accidental killings are considered homicides. Depending on the circumstances, these may or may not be considered criminal offenses.

Suicide is not considered murder in most societies. Assisting a suicide, however, may be considered murder in some circumstances.

Capital punishment ordered by a legitimate court of law as the result of a conviction in a criminal trial with due process for a serious crime.

Killing of enemy combatants by lawful combatants in accordance with lawful orders in war, although illicit killings within a war may constitute murder or homicidal war crimes.

The administration of lethal drugs by a doctor to a terminally ill patient, if the intention is solely to alleviate pain, is seen in many jurisdictions as a special case (see the doctrine of double effect and the case of Dr John Bodkin Adams).

In some cases, killing a person who is attempting to kill another is classified as self-defense and thus, not murder.


Acting in self-defense or in defense of another person is generally accepted as legal justification for killing a person in situations that would otherwise have been murder. However, a self-defense killing might be considered manslaughter if the killer established control of the situation before the killing took place. In the case of self-defense it is called a "justifiable homicide". A killing simply to prevent the theft of one's property may not be a justifiable homicide, depending on the laws of a place.

All jurisdictions require that the victim be a natural person; that is a human being who was still alive at the time of being murdered. In other words, under the law, one cannot murder a cadaver, a corporation, a non-human animal, or any other non-human organism such as a plant or bacterium.

California's murder statute, Penal Code Section 187, was interpreted by the Supreme Court of California in 1994 as not requiring any proof of the viability of the fetus as a prerequisite to a murder conviction. This holding has two implications. The first is a defendant in California can be convicted of murder for killing a fetus which the mother herself could have terminated without committing a crime. The second, as stated by Justice Stanley Mosk in his dissent, because women carrying nonviable fetuses may not be visibly pregnant, it may be possible for a defendant to be convicted of intentionally murdering a person he did not know existed.

Mitigating circumstances

Some countries allow conditions that "affect the balance of the mind" to be regarded as mitigating circumstances. This means that a person may be found guilty of "manslaughter" on the basis of "diminished responsibility" rather than murder, if it can be proved that the killer was suffering from a condition that affected their judgment at the time. Depression, post-traumatic stress disorder and medication side-effects are examples of conditions that may be taken into account when assessing responsibility.


Mental disorder may apply to a wide range of disorders including psychosis caused by schizophrenia and dementia, and excuse the person from the need to undergo the stress of a trial as to liability. Usually, sociopathy and other personality disorders are not legally considered insanity, because of the belief they are the result of free will in many societies. In some jurisdictions, following the pre-trial hearing to determine the extent of the disorder, the defense of "not guilty by reason of insanity" may be used to get a not guilty verdict. This defense has two elements:

That the defendant had a serious mental illness, disease, or defect.

That the defendant's mental condition, at the time of the killing, rendered the perpetrator unable to determine right from wrong, or that what he or she was doing was wrong.

Under New York law, for example:

40.15 Mental disease or defect. In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong.

Under the French Penal Code:

Article 122-1

A person is not criminally liable who, when the act was committed, was suffering from a psychological or neuropsychological disorder which destroyed his discernment or his ability to control his actions.

A person who, at the time he acted, was suffering from a psychological or neuropsychological disorder which reduced his discernment or impeded his ability to control his actions, remains punishable; however, the court shall take this into account when it decides the penalty and determines its regime.

Those who successfully argue a defense based on a mental disorder are usually referred to mandatory clinical treatment until they are certified safe to be released back into the community, rather than prison.

Post-partum depression

Some countries, such as Brazil, Canada, Mexico, Italy, Norway, Sweden, the United Kingdom, New Zealand and Australia, allow postpartum depression (also known as post-natal depression) as a defense against murder of a child by a mother, provided that a child is less than two years old (this may be the specific offense of infanticide rather than murder and include the effects of lactation and other aspects of post-natal care).


For a killing to be considered murder, there normally needs to be an element of intent. For this argument to be successful, the killer generally needs to demonstrate that they took precautions not to kill and that the death could not have been anticipated or was unavoidable, whatever action they took. As a general rule, manslaughter constitutes reckless killing, while criminally negligent homicide is a grossly negligent killing.

Diminished capacity

In those jurisdictions using the Uniform Penal Code, such as California, diminished capacity may be a defense. For example, Dan White used this defense to obtain a manslaughter conviction, instead of murder, in the assassination of Mayor George Moscone and Supervisor Harvey Milk.

Murder with specified aggravating circumstances is often punished more harshly. Depending on the jurisdiction, such circumstances may include:



Murder of a police officer, judge, fireman or witness to a crime

Murder of a pregnant woman

Committed for pay or other reward

Exceptional brutality or cruelty

In the United States, these murders are referred to as first-degree or aggravated murders. In 2004, American Ryan Holle was convicted of first-degree murder for lending his car to a friend, who used the car in a burglary during which a murder was committed. Holle was convicted under a legal doctrine known as the felony murder rule.

Killing of self

Suicide intentional killing of self.

Autocide suicide by automobile.

Medicide a suicide accomplished with the aid of a physician

Self-immolation suicide by setting oneself on fire, a form of extreme protest.

Suicide by cop a suicide by acting threatening and inducing law enforcement personnel to shoot one to death.

Aborticide the act of killing a fetus in the womb

Familicide - is a multiple-victim homicide where a killer's spouse and children are slain.

Feticide (or foeticide) - the act of killing a fetus in the uterus or causing an abortion

Filicide the act of a parent killing his or her son or daughter.

Fratricide the act of killing a brother, also in military context death by friendly fire.

Geronticide the abandonment of the elderly to die, commit suicide or be killed. See also Senicide.

Honor-killing the act of killing a family member who has or was perceived to have brought disgrace to the family.

Infanticide the act of killing a child within the first year of its life.

Mariticide - the act of killing one's spouse, especially the murder of a husband by his wife.

Matricide the act of killing one's mother.

Neonaticide - the act of killing an infant within the first twenty-four hours or month (varies by individual and jurisdiction) of its life.

Parricide (also Parenticide) the killing of one's mother or father or other close relative.

Patricide the act of killing of one's father.

Prolicide the act of killing one's own children.

Senicide the killing of one's elderly family members when they can no longer work or become a burden.

Sororicide the act of killing one's sister.

Uxoricide the act of killing one's wife

Amicicide the act of killing a friend.

Androcide - the systematic killing of men.

Capital punishment the killing of a human being for odious crimes.

Ecocide - the destruction of the natural environment by such activity as war, overexploitation of resources, or pollution

Euthanasia (also mercy killing) the killing of any being for compassionate reasons i.e. significant injury or disease.

Femicide (also Gynecide, Gynaecide, or Gynocide) the systematic killing of women

Gendercide - the systematic killing of members of a specific sex, either males or females

Genocide the systematic extermination of an entire national, racial, religious, or ethnic group.

Homicide the act of killing of a person

Human sacrifice the killing of a human for religious reasons

Omnicide the act of killing all humans, to create intentional extinction of the human species.

Populicide the slaughter of the people.

Xenocide the act of killing an entire alien species

Deicide the act of killing a god or divine being

Dominicide the act of killing one's master.

Episcopicide the act of killing a bishop.

Giganticide the act of killing a giant.

Regicide the act of killing a king.

Tyrannicide the act of killing a tyrant.

Vaticide the act of killing a prophet.

Chronocide the killing or wasting of time

Famacide the killing of another's reputation, a slander.

Liberticide the destruction of liberties.

Urbicide - the destruction of a city or the stifling of an urbanization.

Algaecide a chemical agent that kills algae

Acaricide a chemical agent that kills mites.

Avacide a chemical agent that kills birds

Bactericide a chemical agent that kills bacteria.

Biocide - a chemical agent that kills a broad spectrum of living organisms.

Cervicide the killing of deer.

Ceticide the killing of whales.

Culicide a chemical agent that kills mosquitos.

Felicide the killing of cats

Fungicide - chemical agents or biological organisms used to kill or inhibit fungi or fungal spores.

Germicide - an agent that kills germs, especially pathogenic microorganisms; a disinfectant

Gonocide (also Gonococcicide) an agent that kills the bacterium causing gonorrhea

Herbicide - an agent that kills unwanted plants, a weed killer.

Insecticide an agent that kills unwanted insects.

Larvicide (also Larvacide) - an insecticide targeted against the larval life stage of an insect.

Lupicide The killing of wolves.

Microbicide an agent used to kill or reduce the infectivity of microorganisms.

Muscicide an agent that kills fleas.

Nemacide (also Nematicide, Nematocide) a chemical to eradicate or kill nematodes.

Ovacide an agent that kills eggs of an organism particular a pest i.e. lice eggs.

Parasiticide a general term to describe an agent used to destroy parasites.

Pediculicide an agent that kills head lice.

Pesticide a general term to describe an agent used to destroy or repel an unwanted pest.

Pulicicide (also Pulicide) an agent that kills fleas.

Raticide an agent for killing rats.

Scabicide a chemical agent for killing scabies.

Spermicide a contraceptive agent to render sperm inert and prevent fertilization.

Tauricide the killing of bulls or steers.

Teniacide (Also taeniacide, tenicide ) a chemical agent that kills tape worms.

Vermicide - an agent used to kill parasitic intestinal worms

Vespacide a chemical agent that kills wasps.

Virucide (also Viricide) - an agent capable of destroying or inhibiting viruses

Vulpicide (also Vulpecide)- the killing of a fox by methods other than by hunting it with hounds.



Date: 2015-01-29; view: 1172

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