Malice Aforethought at Common Law

Malice Aforethought at Common Law

Common-law murder is the unlawful killing of another human being committed with malice aforethought.¹ The first words of that definition describe the act, its victim, and its lack of legal justification, so the mental-state question rests on the final two. Malice aforethought is a term of art, meaning a phrase the law has filled with its own content, and that content bears only a slight relationship to the ordinary meaning of either word.² A killing need not be malicious in the everyday sense, and it need not be thought of beforehand. In most states a person who kills a dying, beloved spouse at the spouse's request commits murder, and so does a person who, without any forethought, intentionally pushes a child into water and drowns the child.³

The phrase looks misleading because it began as a literal description and then outgrew it. Early judges did require, for murder, a previously thought-out intent to kill, which is close to what "malice" and "aforethought" say on their face. Over the following centuries the judges recognized new kinds of murder that had no premeditated intent behind them: an intentional killing in an unreasonable passion, an intentional killing formed on the spot, and an unintended killing committed during a felony.⁴ Each step kept the old name while enlarging what it covered, which is why a reader who works from the words alone reaches wrong answers.

The name survived because the element does a sorting job: it separates murder from manslaughter. Blackstone's formulation, quoted in Mullaney v. Wilbur, was that voluntary manslaughter "arises from the sudden heat of the passions, murder from the wickedness of the heart."⁵ Malice could be proved by evidence or implied by law, and a homicide not shown to rest on sudden and sufficiently violent provocation was presumed to be malicious.⁶ American courts then split on what the word meant. In some jurisdictions it became a substantive element of intent, requiring the prosecution to prove that the defendant intended to kill or to inflict great bodily harm, while in others it remained a policy presumption that, absent proof to the contrary, a homicide did not occur in the heat of passion.⁷ The substantive meaning drives the rest of this section, because it asks what the defendant's mind actually contained.

Modern statutes keep the vocabulary. California defines murder as the unlawful killing of a human being with malice aforethought and provides that malice may be express or implied: express when there is a manifested deliberate intention to unlawfully take away life, and implied when no considerable provocation appears or the circumstances of the killing show an abandoned and malignant heart.⁸ The federal homicide statutes draw the same line, treating an unlawful killing without malice as manslaughter and one with malice aforethought as murder.⁹ The express and implied labels are a useful shorthand. The intent to kill is the paradigm of express malice, and the remaining forms are usually treated as implied malice, meaning malice the law infers from conduct and circumstances.¹⁰

The four are alternatives and not cumulative elements, so a prosecutor who proves an intent to kill need not also prove recklessness or a felony. What unites them is a level of blame severe enough to justify the label murder. The first two involve a deliberate decision to kill or gravely injure. The third involves indifference to human life so extreme that the law treats it as close to equivalent to that decision, since a person who shows no regard for whether others live displays toward the victim the same disregard that an intent to kill displays.¹² The fourth substitutes the intent to commit a felony for a homicidal intent, and at common law the intent to kill and the intent to commit a felony were alternative aspects of the single concept of malice aforethought.¹³

Malice is also a matter of subtraction. Every intentional killing carries malice unless the circumstances amount to justification, excuse, or mitigation.¹⁴ The definition builds that limit into the rule, since malice aforethought exists when no doctrine excuses the homicide or reduces it to voluntary manslaughter and the defendant acts with one of the qualifying mental states.¹⁵ The clearest mitigation is heat of passion. An intentional killing that would otherwise be murder, but that occurred in the heat of passion following adequate provocation and before a reasonable cooling-off period had elapsed, is voluntary manslaughter.¹⁶ The line follows the older contrast between passion and wickedness of the heart: a provoked killer's intent was produced by a sudden disturbance, so the law does not treat the killing as showing the full blame that murder is reserved for. The requirements of adequate provocation are a separate topic, and here provocation matters only as the contrast case.

The intent to kill was identical in both scenes, so the answer turned on mitigation facts, namely the provocation and the missing cooling-off time, and not on any difference in the defendant's mental state toward the victim. Students lose this issue when they read malice aforethought as spite or advance planning, which leads them to deny malice for an unplanned killing that the law plainly treats as murder.¹⁹

The second step does the real work, because exam facts rarely announce the mental state and instead describe what the defendant aimed at, knew, or ignored. The next four subsections teach what each qualifying mental state requires, beginning with the intent to kill.

Intent to Kill

The first of the four qualifying mental states is also the easiest, because it matches the ordinary picture of a murderer. A deliberate intent to kill another human being is express malice, the form of malice aforethought that requires no inference from dangerous or reckless conduct.²¹ California's statute says the same thing by treating malice as express when a deliberate intention to unlawfully take away the life of a fellow creature is manifested.²² Georgia's murder statute defined express malice in nearly identical terms and added that the intention is shown through outward circumstances that can be proved, which anticipates the question of how a prosecutor establishes intent, taken up later in this chapter.²³

The rule is built around a decision to end a life because that decision is the most culpable mental state a defendant can hold toward a homicide, which makes it the clearest case for the law's most serious homicide label. The word deliberate in the definition refers to that conscious choice and does not demand a plan laid in advance. A person who, without any earlier thought, intentionally pushes a child into water and drowns the child commits murder, and the same is true of intentional killings generally, unless the killing is lawful or is mitigated to manslaughter.²⁴

Intent to kill settles whether a killing is murder at all, which is a different question from the degree of murder. Many statutes reserve first-degree murder for killings that are premeditated and deliberated, and the state codes on which the District of Columbia's murder statute drew uniformly required premeditation and deliberation in addition to the intent to kill.²⁵ In most jurisdictions, however, premeditation means little more than intentional killing, and an intent formed at the moment of the act is enough.²⁶ Students lose this issue when they demand advance planning before finding malice, because malice needs only the intent, and the presence or absence of premeditation bears on the degree.²⁷

Intent can be aimed at one person and land on another, and the law follows the intent. Under the doctrine of transferred malice, malice directed at one person that instead harms another is treated as malice toward the person actually harmed, so a defendant who shoots at one person intending to kill and instead kills a second person is guilty of murdering the second.²⁸ The reason lies in the source of the blame. The defendant's culpability comes from the choice to take a life, and that choice is just as culpable when the bullet strikes a bystander as when it strikes the target. The doctrine has a limit, because it applies only where the harm intended and the harm done are of the same kind, so a person who throws a stone at a human being and unintentionally breaks a window has not committed malicious damage to the window.²⁹

The physical act was the same shove in both scenes, and only the defendant's aim at the moment of the act changed the result. That is what this category tests: whether death was the goal. The absence of an intent to kill closes only this one route, so the facts must still be run against the intent to inflict grievous harm, extreme recklessness, and felony murder, which the next subsections take up.

Common-law courts also treat a defendant who knows that an act will cause death as having intended the death, so the category reaches awareness without desire. The theories of malice aforethought that prosecutors commonly present include knowledge that death will occur alongside intent to kill.³² The reasoning is that every actor is deemed to intend the natural and probable consequences of an intentional act.³³ A defendant who is certain the victim will die but hopes otherwise therefore stands where one who wants the death stands. The Code keeps wanting and knowing apart as purpose and knowledge, and the final section of this chapter returns to how the two vocabularies line up.

Intent to kill is also the narrowest of the four routes to malice, and attempted murder shows it. Because an attempt requires a specific intent, only an intent to kill supports attempted murder. An intent merely to inflict serious injury would supply malice if the victim died, but it cannot support attempted murder when the victim survives.³⁴ New Jersey's attempt statute reflects the same demand, requiring a purpose to cause death, with the same culpability the completed offense requires.³⁵

Intent to Inflict Grievous Harm

The second qualifying mental state drops the wish for death that made the first one so easy to recognize. A deliberate intent to inflict great bodily injury on another human being is a form of implied malice, so a defendant who set out to injure the victim seriously, and whose victim died, acted with malice aforethought even though death was never the goal.³⁷ Courts describe the qualifying injury as grievous, serious, or great bodily harm, and homicide law lists these killings as their own category of murder, alongside intentional killings and killings caused by outrageously reckless conduct. Some states extend the category to an intentional assault with a deadly weapon.³⁸ The category yields to the same subtractions as every other route to malice, so a killing that is justified, excused, or mitigated to manslaughter is not murder merely because the defendant meant to injure seriously.³⁹ The law infers malice from the intended seriousness of the harm, so the prosecution does not have to prove that the defendant wanted the victim dead.

Each half of the rule, the intent and the seriousness, has its own logic. The intent half requires that the injury be the defendant's deliberate aim. That ties the blame to a chosen course of conduct and screens out accidents and careless blows. The seriousness half sets the level of danger. Injury of a grievous kind carries a real chance of death, so a defendant who deliberately inflicts it has accepted that chance as the price of the attack. The law treats that acceptance as close in moral weight to the intent to kill at the top of the ladder of blame. A practical reason points the same way. A defendant who beats a victim to death will often say that only a beating was intended, and a wish for death is hard to establish from the outside. The rule lets the prosecution reach the killing by proving what the defendant set out to do to the victim's body, which can be inferred from the attack itself.

Both victims died, and in both scenes the defendant struck deliberately. The variable that moved was the seriousness of the harm the defendant intended. Students lose this issue when they measure the injury the victim actually suffered and neglect the seriousness of the harm the defendant intended, because a fatal result shows only that the harm turned out to be grave, and the element asks what the defendant meant to do.⁴² The actual injuries still matter as evidence of that aim, since the weapon, the force, and the number of blows all bear on what the defendant meant, and a later section takes up that inference. The slap facts also do not end the analysis at manslaughter. They must still be run against extreme recklessness and the felony-murder rule before the killing is classed as involuntary manslaughter, because each of those is a separate route to malice.

Intent is not the only mental state that reaches this category. The recognized theories of malice aforethought list knowledge that grievous bodily harm will occur next to the intent to cause it.⁴³ The reasoning matches the treatment of knowledge that death will occur. A defendant who is certain that serious injury will follow from an act, even while hoping to avoid it, has chosen the act with the result in view and stands where the defendant who wanted the result stands.

The category belongs to the common law's vocabulary, and the Model Penal Code handles the same facts differently. The Code gives an intent to cause grievous bodily harm no independent significance as a basis for murder. Such cases go to the Code's standards of extreme-indifference murder and reckless manslaughter, where the intended gravity of the injury is one consideration in judging whether the defendant showed extreme indifference to the value of human life.⁴⁴ On a stem governed by common-law malice, the intent-to-injure route stands on its own as a way to reach murder. The final section of this chapter returns to how the two systems line up.

Depraved-Heart Recklessness

The third qualifying mental state involves no aim at the victim at all. A reckless indifference to an unjustifiably high risk to human life, often described as acting with an "abandoned and malignant heart," is a form of implied malice.⁴⁶ California's statute treats malice as implied when the circumstances attending the killing show an abandoned and malignant heart, and a Georgia murder charge reproduced in the Supreme Court's opinion in Gregg v. Georgia uses nearly identical words.⁴⁷ Intent to kill and intent to inflict grievous harm both ask what the defendant was trying to do. This category asks how dangerous the conduct was and how little the defendant cared about the lives it endangered, so the prosecution proves depraved-heart malice through the quality of the risk and the attitude toward it, and a death the defendant never wanted can still be murder.

The rule has two parts, and each has its own reason. The risk part requires that the danger to human life be unjustifiably high, which sets a threshold above the ordinary hazards of daily life and takes account of whether the conduct served any worthwhile purpose. The indifference part concerns the defendant's attitude toward that danger. A person who knowingly exposes others to a very high risk of death without regard to whether they live displays a moral quality close to that of a person who intends the death, and the Model Penal Code reflects the same judgment when it treats recklessness that can fairly be assimilated to purpose or knowledge as murder.⁴⁸ Both parts are needed because conscious risk-taking is common. If any conscious disregard of a risk to life made a killing murder, nothing would remain of manslaughter for reckless killings, so requiring a high risk and a correspondingly extreme indifference reserves the murder label for the worst cases and leaves the rest to the lesser offense.⁴⁹

The degree of risk cannot be reduced to a percentage. Courts rarely say that a twenty-five percent chance of death suffices and a fifteen percent chance does not, and the recognized examples are conduct whose danger is plain on its face, such as a motorist who drives through the center of a large city at rush hour at eighty miles an hour, or a workman who hurls a brick from the top of a tall building into an area where several people are standing.⁵⁰ What fills the gap is the purpose behind the conduct. A doctor who performs an operation carrying a seventy-five percent chance of death, when the patient would otherwise die within six months, is very unlikely to be convicted of murder if the patient dies, because the risk served the patient's life.⁵¹ A driver who weaves through a crowd purely for fun is likely to be convicted of murder for a resulting death even if the objective probability of death was under twenty percent, and the same driver would be less likely to face a murder conviction if the wild driving were meant to get a critically ill husband to the hospital.⁵² Risk and purpose therefore weigh together: a worthless purpose can make even a modest risk depraved, while a valuable purpose can justify a large one.

Impaired driving shows how courts apply these ideas to a common fact pattern. In a federal prosecution under 18 U.S.C. § 1111(a), a driver named Fleming, whose blood alcohol level tested at .315 percent after the crash, was convicted of second-degree murder, and the conviction was affirmed.⁵⁵ The court explained that the difference between the malice that supports murder and the gross negligence that supports only manslaughter is one of degree rather than kind.⁵⁶ It also observed that in the average drunk-driving death the driver's impairment made ordinary driving dangerous, while Fleming drove in a manner that could indicate depraved disregard of human life, made all the more dangerous by his intoxication.⁵⁷ Many jurisdictions now permit second-degree murder for extraordinarily reckless driving while impaired, though some do not, and depraved-heart murder is usually classed as second-degree murder.⁵⁸

A recurring question is whether the defendant must have been aware of the risk. Most jurisdictions require subjective awareness when a murder conviction is at stake, though some permit murder for outrageous recklessness measured against a reasonably prudent person, whether or not the defendant realized the magnitude of the risk.⁵⁹ The Model Penal Code takes the subjective side, since its recklessness requires that the defendant consciously disregard a substantial and unjustifiable risk, and it makes a killing murder when committed recklessly under circumstances manifesting extreme indifference to the value of human life.⁶⁰ The subjective rule fits the indifference half of the doctrine. Indifference to a danger requires a mind that registered the danger, and a defendant who never perceived the risk has not chosen to disregard anyone's life. The stakes explain why subjectivity carries more force here than for manslaughter, because a murder conviction places the defendant among the worst killers. On an exam stem, facts saying the defendant knew of the danger point toward this category, while facts saying the defendant should have known point toward negligence-based liability unless the jurisdiction uses the objective standard.

Involuntary manslaughter sits directly below depraved-heart murder. An unintentional killing caused by criminal negligence or recklessness, meaning a gross deviation from the care a reasonable person would use that creates a high risk of death or serious bodily harm, is involuntary manslaughter, and the risk and indifference it requires are lower than those required for depraved-heart murder.⁶¹ The two offenses share every element except the mental state, so involuntary manslaughter is a lesser included offense of murder, and a prosecutor who proves murder has proved the manslaughter as well.⁶² Because the difference lies in degree, the same conduct can be charged under either label.

A sleep-deprived driver shows how one set of facts can support both. Stan has worked thirty-six straight hours and has fallen asleep at his desk several times. He knows he is exhausted and knows that driving while sleep deprived is dangerous, yet he decides to risk the drive home, drifts into the opposite lane, and kills Lisa.⁶³ The act, causation, and result elements for murder are all present, which leaves only the mental state. Stan did not mean to hurt anyone, so neither intent route is available, and involuntary manslaughter is the charge most likely to succeed because he consciously disregarded a substantial and unjustified risk of death or grievous bodily harm.⁶⁴ Murder remains possible, however, because wanton recklessness demonstrating depraved indifference to the value of human life is a recognized form of malice aforethought. A prosecutor can therefore charge both offenses and leave the jury to decide whether Stan acted recklessly and, if so, whether the recklessness was wanton enough for murder, and a murder verdict would absorb the manslaughter count into a single murder sentence.⁶⁵ The Model Penal Code accepts that this judgment cannot be reduced to a formula and leaves it directly to the trier of fact, under instructions that recklessness fairly assimilated to purpose or knowledge is murder and less extreme recklessness is manslaughter.⁶⁶

In both versions Stan consciously took a risk, and in both Lisa died. The variable that moved was the degree of danger he had already confronted and ignored, which is the variable that separates the two labels. Students lose this issue when they treat any conscious risk-taking as murder and overlook the degree of risk and indifference, because a defendant who consciously disregards a risk is reckless, and recklessness alone leaves the killing at manslaughter unless the risk and indifference are extreme.⁶⁸ The line is also not mechanical, since the same facts can support either charge and the jury decides where they fall. The Code's own vocabulary for this category, taken up in the final section of this chapter, is recklessness manifesting extreme indifference to the value of human life.

Felony-Murder Malice

The fourth qualifying mental state differs from the other three because it need not concern the victim's death at all. Intent to kill, intent to inflict grievous harm, and depraved-heart recklessness each describe something the defendant aimed at or consciously risked with respect to human life. Under the felony-murder rule, an intent to commit a felony supplies implied malice, a route this chapter calls felony-murder malice, so a death caused during the felony can be murder even though the defendant never meant to kill anyone.⁷⁰ The recognized theories of malice aforethought list the intent to commit a felony beside the intent-to-kill and recklessness theories, which confirms that the felony intent is one more way of establishing the same mental element of murder.⁷¹ The prosecution's proof changes accordingly: it proves the intent to commit the felony, and that intent stands in for the malice the other routes would require.

The substitution has a practical reason and a moral one. Practically, killings during felonies are frequently unplanned, so without this route the prosecution would have to prove intent to kill, intent to inflict grievous harm, or depraved indifference in each case, and each of those depends on a state of mind the defendant may never have formed toward the victim. The felony route replaces that inquiry with a fact the prosecution can ordinarily prove directly, the defendant's purpose of committing the felony. Morally, dangerous felonies carry a foreseeable risk of death, so the law treats the decision to commit one as blameworthy enough to stand where an intent to kill would stand. The plurality opinion in Schad v. Arizona reflected that view when it observed that at common law the intent to kill and the intent to commit a felony were alternative aspects of the single concept of malice aforethought, and that a moral equivalence between the two mental states could reasonably be found.⁷²

Statutes can express the same idea in different words. The Georgia murder statute reproduced in Gregg v. Georgia provides that a person also commits murder when, in the commission of a felony, that person causes the death of another human being, regardless of malice.⁷³ The common-law formulation says the felony intent supplies malice, while the Georgia text says malice is beside the point, and the practical effect is the same: the prosecution proves the felony and the resulting death, and no separate state of mind about killing has to be shown.

The pair shows what the substitution depends on. The felony intent does the work of malice only when the felony is one the felony-murder rule covers, which keeps the substitution tied to the kinds of felonies that justify treating the choice as culpable as an intent to kill. When the felony falls outside the rule, the intent to commit it is not malice, and the death is treated as the product of an unlawful act that stops short of murder.⁷⁶ The failure of this route does not end the inquiry, because the prosecution may still try to prove intent to kill, intent to inflict grievous harm, or depraved-heart recklessness, each of which is a separate route to malice.⁷⁷ Students lose this issue when they demand proof of an intent to kill for a death during a covered felony, because the felony intent takes the place of that proof.⁷⁸

Many modern jurisdictions narrow the substitution. Early common law treated any death resulting from a felony as murder, and most jurisdictions now limit the doctrine to dangerous felonies, foreseeable deaths, or both.⁷⁹ California's statute adds that, except as stated in § 189(e), a principal in a crime must act with malice aforethought, and malice is not imputed to a person based solely on participation in a crime.⁸⁰ Which felonies count, which participants are reached, and how the death must connect to the felony belong to a separate reading on the felony-murder rule. Here the point is only the mental-state function: where the rule applies, the felony intent stands in for malice, and the final section of this chapter returns to how the Code's vocabulary lines up with the four common-law categories.