Malice aforethought
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- For the novel, see Malice Aforethought.
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Specifically in the criminal law, malice aforethought is the element of mens rea (Latin for "guilty mind") which must accompany the actus reus of death, in order to secure a conviction for murder under the common law.
"Malice aforethought" is a precisely defined legal term that does not correspond to the lay definitions of either of its constituent words. It means one of any of the following states of mind concurrent with an act or omission that resulted in death of a person. In his leading textbook, Glanville Williams says at para 11.2 that it is:
- a term of art if not a term of deception. Murder does not require either spite or premeditation. Mercy killing can be murder, so can a killing where the intent is conceived on the instant.
In English law following Moloney [1985] AC 905, the mens rea requirement is an intention to cause death, or to cause serious injury knowing that death will probably result. To that extent, whether on a subjective or objective test, there must be some element of premeditation, even if only of very short duration.
In the United States, the law adds the following three possibilities:
- (a) Intention to cause grevious injury and death resulted.
- (b) Conduct with a "depraved heart" showing lack of care for human life.
- (c) Intent to commit any felony whatsoever ( termed felony murder.)
Note that through the principle of transferred intent, it does not matter that the accused aimed to kill A but, by accident, killed B.
In most common law jurisdictions, the American Law Institute 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.
[edit] See also
[edit] References
Glanville Williams, Textbook of Criminal Law (2nd ed 1983), London: Stevens & Sons, ISBN 0-420-46860-9
