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(a) intention to cause the death of, or grievous bodily harm to, any person….

(b) knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person … although such knowledge is accompanied by indifference or by a wish that it may not be caused….[3]

As Stephen shows, “malice” no longer required an intent to kill; the term “malice aforethought” acquired a much broader meaning. It was no longer limited to ill will toward the victim or preplanned killings, as Parliament originally intended; it had been broadly “reinterpreted” by the courts to have little, if anything, to do with either malice or aforethought.

Part (a) of the definition above seems obvious as to why such persons might be labeled as serious offenders. People who intend to kill are arguably the “worst” killers. Part (b) of the definition is less evident; not everyone who sets out to hurt someone severely by, for example, stabbing them in the arm, intends death. Perhaps in past centuries, when serious bodily harm often led to death because of inadequate medical treatment, an intent to kill could be inferred from any intent to inflict serious harm. That inference is less sound today.

The common law developed a set of romantic terms to describe the second kind of killings done with “malice aforethought,” sometimes called implied malice. Persons who, though not intending to kill, nevertheless acted in a way that they knew created a very high risk of death, and not caring whether death occurred or not, were said to act with a “depraved and malignant mind” or one “disregarding social duty” or having an “abandoned heart.” Such, for example, was the case of a defendant who, for no apparent reason, fired a rifle into a train, killing (by mere fortuity) a trainman. Under this approach someone who knowingly creates a great risk of death generally, and actually kills someone, can be found to have acted with “malice aforethought” toward the victim.

In sum, both those who wanted to kill and those who engaged in very dangerous conduct that they actually foresaw almost surely would (and did) result in death could be convicted of murder with “malice aforethought.”

If this all sounds confusing, don’t be too alarmed. The definition of “malice aforethought” continues to perplex courts. In 2007, more than six centuries after it was first used, the California courts stumbled as they tried to define the term. In People v. Knoller, 41 Cal. 4th 139, the trial court concluded that the term, as used in California, meant conduct “that involved a high probability of resulting in the death of another.” The California appellate court disagreed, concluding that the term meant “a defendant’s conscious disregard of the risk of serious bodily injury to another.” The California Supreme Court determined that BOTH courts were wrong—the term meant “an act, which is dangerous to life, deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” Thankfully at least the seven California Supreme Court justices were unanimous. But if the trial court, and the three judges on the appellate division, can err on such a fundamental point, you have every right to be uncertain of the precise meaning of the term.

[3] James Fitzjames Stephen, A Digest of the Criminal Law 161-162 (1887).

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