HOME

TheInfoList



OR:

Malice aforethought is the "premeditation" or "predetermination" (with malice) required as an element of some
crime In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definit ...
s in some jurisdictions and a unique element for first-degree or
aggravated Aggravation, in law, is "any circumstance attending the commission of a crime or tort which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime or tort itself. ...
murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
in a few. Insofar as the term is still in use, it has a technical meaning that has changed substantially over time.


Etymology

Malice aforethought is a direct translation of the
Law French Law French ( nrf, Louai Français, enm, Lawe Frensch) is an archaic language originally based on Old Norman and Anglo-Norman, but increasingly influenced by Parisian French and, later, English. It was used in the law courts of England, be ...
term ''malice prépensée'', so the adjective follows the noun as in French.


Legal history

Malice aforethought was not an element of murder in early
medieval English law In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the post-classical period of global history. It began with the fall of the Western Roman Empire a ...
cases. Both
self-defence Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in ...
killings and
death by misadventure In the United Kingdom, death by misadventure is the recorded manner of death for an accidental death, caused by a risk taken voluntarily. Misadventure in English law, as recorded by coroners and on death certificates and associated documents, ...
were treated as murder by juries. Although pardons for self-defence became common after the
Statute of Gloucester The Statute of Gloucester (6 Edw 1) is a piece of legislation enacted in the Parliament of England during the reign of Edward I. The statute, proclaimed at Gloucester in August 1278, was crucial to the development of English law. The Statute of Gl ...
was passed in 1278, the jury in a 14th-century case still found that a self-defence killing was felonious. In the 12th century, any death by misadventure without a "presentment of
Englishry Englishry or, in Old French, ''Englescherie'', is a legal name given, in medieval England, for the status of a person as an Englishman (i.e., as a commoner of native Anglo-Saxon stock rather than a member of the Anglo-Norman elite). Specifically, ...
" was sufficient for a jury finding of murder, even in cases where there was no suspect and the victim's identity is unknown. The murder fine was levied in these cases under the Laws of Henry until 1267, when the fine for death by misadventure was abolished by the
Statute of Marlborough The Statute of Marlborough (52 Hen 3) is a set of laws passed by the Parliament of England during the reign of Henry III in 1267. The laws comprised 29 chapters, of which four are still in force. Those four chapters constitute the oldest piece ...
during the baronial reform movement. The primary meaning of ' continued to be murder fine until the fine was abolished by the Engleschrie Act of 1340. The first
statutory A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
mention of malice aforethought dates to the reign of
Richard II Richard II (6 January 1367 – ), also known as Richard of Bordeaux, was King of England from 1377 until he was deposed in 1399. He was the son of Edward the Black Prince, Prince of Wales, and Joan, Countess of Kent. Richard's father died ...
in 1389. In 1390, Parliament defined murder as "death of a man slain by await, assault, or mallice prepensed". Henceforth, juries were instructed to consider whether a
felony A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resu ...
had been committed with malice aforethought. A 1403 jury instruction recorded in a 16th-century manuscript written by
Edward Stillingfleet Edward Stillingfleet (17 April 1635 – 27 March 1699) was a British Christian theologian and scholar. Considered an outstanding preacher as well as a strong polemical writer defending Anglicanism, Stillingfleet was known as "the beauty of holin ...
reads: "Also you will inquire about all sorts of homicides both of those who lie in wait through malice aforethought ar malice devant pourpensein the peace of homes and other places nd whomurder people and of those who slay men through a hot-blooded mêlée haude melle. Harley MS 773; Jeremy Horder, Provocation and Responsibility (1992), p.10 Some scholars have identified concepts from
Anglo-Saxon law Anglo-Saxon law (Old English ''ǣ'', later ''lagu'' "law"; dōm "decree, judgment") is a body of written rules and customs that were in place during the Anglo-Saxon period in England, before the Norman conquest. This body of law, along with earl ...
as the origin for malice aforethought, but the connection is disputed. The Anglo Saxon legal concept of ''forsteal'' included lying in wait and ambush, but it remains unclear whether or not premeditation or intent were requirements for murder during this early period. It has been argued that ''forsteal'' became ' in medieval English law, which was also called ' in Latin. In 1552, malice aforethought is applied as a requirement for murder in
Thomas Buckler's Case Thomas may refer to: People * List of people with given name Thomas * Thomas (name) * Thomas (surname) * Saint Thomas (disambiguation) * Thomas Aquinas (1225–1274) Italian Dominican friar, philosopher, and Doctor of the Church * Thomas the Ap ...
. Malice aforethought emerges as an ill-defined concept from the writings of Blackstone,
Joseph Chitty Joseph Chitty (12 March 1776 – 17 February 1841) was an English lawyer and legal writer, author of some of the earliest practitioners' texts and founder of an important dynasty of lawyers. Life and practice He was himself the son of a Joseph Ch ...
and their predecessors, Matthew Hale and
Edward Coke Edward is an English given name. It is derived from the Anglo-Saxon name ''Ēadweard'', composed of the elements '' ēad'' "wealth, fortune; prosperous" and '' weard'' "guardian, protector”. History The name Edward was very popular in Anglo-Sa ...
.


Distinguished from manslaughter

After the
Norman conquest The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England by an army made up of thousands of Norman, Breton, Flemish, and French troops, all led by the Duke of Normandy, later styled William the Conque ...
,
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
courts began to distinguish murders from homicides that occur during sudden brawls. Over centuries, this distinction evolved into an early form of the doctrine of
provocation Provocation, provoke or provoked may refer to: * Provocation (legal), a type of legal defense in court which claims the "victim" provoked the accused's actions * Agent provocateur, a (generally political) group that tries to goad a desired res ...
that distinguishes murder from
voluntary manslaughter Voluntary manslaughter is the killing of a human being in which the offender acted during ''the heat of passion'', under circumstances that would cause a reasonable person to become emotionally or mentally disturbed to the point that they cannot ...
. By the time the Statute of Stabbing was passed in 1604, judges had started to consider whether provocation was sufficient in "heat of the blood" cases. During the 17th century, this was more clearly articulated in subsequent cases and gradually developed into the common law categorical test for provocation. The Statute of Stabbing had removed the
benefit of clergy In English law, the benefit of clergy (Law Latin: ''privilegium clericale'') was originally a provision by which clergy Clergy are formal leaders within established religions. Their roles and functions vary in different religious traditions, ...
for cases where there was a killing without provocation.


Early American law

Malice aforethought was the ''
mens rea In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
'' element of murder in 19th-century
America The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, and remains as a relic in those states with a separate first-degree murder charge. As of 1891,
Texas Texas (, ; Spanish language, Spanish: ''Texas'', ''Tejas'') is a state in the South Central United States, South Central region of the United States. At 268,596 square miles (695,662 km2), and with more than 29.1 million residents in 2 ...
courts were overwhelmed with discussing whether "malice" needs to be expressed or implied in the judge's
jury instructions Jury instructions, directions to the jury, or judge's charge are legal rules that jurors should follow when deciding a case. They are a type of jury control procedure to support a fair trial. Description Jury instructions are the set of legal ...
. However, the 1970s revision of the Texas Penal Code states that a murder must be committed "intentionally or knowingly" in Texas.


Modern law


England

In
English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...
, the ''mens rea'' requirement of murder is either an
intention Intentions are mental states in which the agent commits themselves to a course of action. Having the plan to visit the zoo tomorrow is an example of an intention. The action plan is the ''content'' of the intention while the commitment is the ''a ...
to kill or an intention to cause grievous bodily harm. In '' R v Moloney''
985 Year 985 (Roman numerals, CMLXXXV) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar. Events By place Europe * Summer – Henry II, Duke of Bavaria, Henry II (the Wrangler) is rest ...
Lord Bridge held that intent, as defined in the ''mens rea'' requirement of murder, 'means intent', so the jury should simply use the term ''intent'' legally as they would in normal parlance. Furthermore, he held that for the defendant to have the ''mens rea'' 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 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 ''R v Woollin'' was a decision of the highest court of law-defining in English criminal law, in which the subject of intention in ''mens rea'', especially for murder was examined and refined. Facts Having given various explanations for his three ...
'') death or serious bodily harm was a 'virtual certainty' of the defendant's act, and the defendant appreciated that to be so (also known as 'oblique intent.')


United States

In most common law jurisdictions, the American Law Institute's
Model Penal Code The Model Penal Code (MPC) is a model act designed to stimulate and assist U.S. state legislatures to update and standardize the penal law of the United States.MPC (Foreword). The MPC was a project of the American Law Institute (ALI), and was pu ...
, and in the various
U.S. state In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sover ...
statutes, which have codified homicide definitions, the term has been abandoned or substantially revised. The four states of mind that are now recognized as constituting "malice aforethought" in murder prosecutions are as follows: #intent to kill #intent to inflict serious bodily injury #extremely reckless disregard for the value of human life #
felony murder rule The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when someone is killed (regardless of intent to kill) in the commission of a dangerous or enumerated crime (called a felony in so ...
Since there are 4 different states of mind of malice aforethought, it can be hard to find the differences. It is easiest to break these categories up by premeditation, or express malice and reckless endangerment, or implied malice. Intent to kill or to inflict serious bodily injury would be considered express. This does not mean that the accused made a plan far in advance, but it could even be in the moment of the crime. If the person did the action knowing it would hurt or kill the other person, there was express malice involved, which is a form of malice aforethought. As stated above, malice aforethought does not require that the person accused premeditated to hurt a person, but that they knew their actions could lead to someone's harm. This is implied malice, which requires that a person knowingly did an act that they knew was dangerous, and acted without concern for other people's safety. 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 In United States law, depraved-heart murder, also known as depraved-indifference murder, is a type of murder where an individual acts with a "depraved indifference" to human life and where such act results in a death, despite that individual not ...
", or during the commission of or while in flight from a felony or attempted felony (termed
felony murder The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when someone is killed (regardless of intent to kill) in the commission of a dangerous or enumerated crime (called a felony in s ...
). Notably, the principle of
transferred intent Transferred intent (or transferred , or transferred malice, in English law) is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held resp ...
causes an accused who intended to kill one person but inadvertently killed another instead to remain guilty of murder. The intent to kill the first person suffices.


Australia

Malice aforethought is no longer regarded as a necessary ''mens rea'' element to obtain a murder conviction. The term is a catch-all phrase that encompasses all the states of mind that are sufficient ''
mens rea In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
'' for murder.. Most Australian
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...
s require some degree of actual awareness of the resulting consequences of the accused's own actions to justify a
murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
conviction. The
High Court of Australia The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution. The High Court was established fol ...
affirmed that there is a spectrum of ''mens rea'' ranging from intention to kill to reckless indifference that would be relevant in securing a murder conviction.. However, the High Court ruled that it was not necessary to prove malice aforethought in a manslaughter conviction.. The Full Court of the
Supreme Court of Victoria The Supreme Court of Victoria is the highest court in the Australian state of Victoria. Founded in 1852, it is a superior court of common law and equity, with unlimited and inherent jurisdiction within the state. The Supreme Court comprises ...
distinguished between the two classes of manslaughter. They were manslaughter by reckless indifference and manslaughter by criminal negligence in ''R v Nydam''. in which malice aforethought was definitively ruled out as an element in a charge of manslaughter by criminal negligence.


References

{{Authority control Crime