Malice aforethought
Malice aforethought is the "premeditation" or "predetermination" that was required as an element of some crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...

s in some jurisdictions, and a unique element for first-degree or aggravated murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...

 in a few.

Legal history

Malice aforethought was the mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...

element of murder in 19th-Century America
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

, and remains as a relic in those states with a separate First-degree murder charge.

As of 1891, Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...

 courts were overwhelmed with discussing whether "malice" needs to be expressed or implied in the judge's jury instructions
Jury instructions
Jury instructions are the set of legal rules that jurors should follow when the jury is deciding a civil or criminal case. Jury instructions are given to the jury by the jury instructor, who usually reads them aloud to the jury...


Modern law

In English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

 the mens rea requirement of murder is an intention to commit an act (or omission) and that there is a "high degree of probability" that such act or omission will result in the death or serious injury
Grievous bodily harm
Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....

 of another person.

To varying extents in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

, 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
Felony murder rule
The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder in two ways. First, when an offender kills accidentally or without specific intent to kill in the course of an applicable felony, what might have been manslaughter is escalated to murder...

.) In England, such mens rea would only found a verdict of reckless or constructive manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...


Note that through the principle of transferred intent
Transferred intent
Transferred intent describes the fact that intent can be transferred between victims, between torts, or both. In tort law, there are generally five areas in which transferred intent is applicable: battery, assault, false imprisonment, trespass to land, and trespass to chattels...

, 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
Model Penal Code
The Model Penal Code is a statutory text which was developed by the American Law Institute in 1962. The Chief Reporter on the project was Herbert Wechsler. The current form of the MPC was last updated in 1981. The purpose of the MPC was to stimulate and assist legislatures in making an effort to...

, 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.
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