I’m sure you all have read about the local Slager case, but if you haven’t here’s a Reuters account: Judge declares mistrial in ex-South Carolina policeman's murder trial | Reuters
The case was recessed on Friday after one juror failed to convict on either voluntary manslaughter or murder (under SC law). He wanted definitions of “passion” and “fear” apparently wavering between manslaughter and self-defense. When the jurors reconvened yesterday, there was a new twist. Apparently the charge of murder was thrown in the mix. Not stated in that summary, the jurors wanted “malice aforethought” defined. The judge informed the jurors that aforethought need only a minute or two, even a second or two. This case has been on local TV extensively and I’m fairly sure those were the judge’s instructions. My question is if “aforethought” does not have to take any appreciable time, how does that differ from “passion”? Certainly, if you shoot a guy in your wife’s bed (due to passion) you must have malice in your heart too. At least I would think so.
I don’t have an answer to your question, however, as an aside: apparently in all my 41 years (6 of them as a journalist!) I don’t think I’ve ever seen “malice aforethought” actually written out before. In the limited amount of times that I’ve even thought about this phrase, let alone used it, I thought it was “malice *and *forethought.”
I have learned something today.
Offenses Against the Person
ARTICLE 1
Homicide
SECTION 16 3 5. Person causing injury which results in death at least three years later not to be prosecuted for homicide.
A person who causes bodily injury which results in the death of the victim is not criminally responsible for the victim’s death and must not be prosecuted for a homicide offense if at least three years intervene between the injury and the death of the victim.
HISTORY: 2001 Act No. 97, Section 1.
SECTION 16 3 10. “Murder” defined.
“Murder” is the killing of any person with malice aforethought, either express or implied.
It seems pretty obvious to me, as an English speaker, that “malice aforethought” means that one conceived of the idea of harming some particular individual prior to assembling the means to do so and prior to the opportunity presenting itself. If it means something ele in law, that would be a twisting of words.
Say if I wanted to kill someone, and then I went and got the tire iron, and then I went to wait for him on the corner, that would be malice aforethought.
But that just moves the definition around. In this case, the “assembling the means” was drawing the officers weapon, and the opportunity presented itself once the officer aimed the weapon. Given that the amount of time involved doesn’t matter, malice aforethought in practice means (to me) the person takes some action that the person believes will result in the death of the victim. If I punch a person in the jaw and he falls hits his head and dies, that isn’t malice aforethought-I never thought the person would die from the action. If I hit him with a tire iron, he falls and dies from hitting his head, that is-because I thought, or a reasonable person in that situation would think, that hitting a person in the head with an iron rod could be fatal. That people don’t always die is why we have attempted murder.
I was a juror on a murder case many years ago, and if I recall correctly, the difference in your case is this: If the “decision” to kill was not made before seeing the couple in bed, then there was no malice aforethought. But if the decision was made even a moment before, then there was. It boils down to whether it was a conscious decision, even if only taken a moment before the act, or an unconscious act of passion.
It’s the difference between muder and manslaughter.
The phrase is from old-time British law. I have no idea whether it is part of current statutes, but it’s been around so long that a very famous mystery of that title was written in 1931 by Anthony Berkeley Cox.
It was apparently also taken over into American law with the same meaning according to the 1910 article from The Yale Law Journal.
In modern language, I would assume the phrase simply means premeditation.
“malice aforethought” is an archaic phrase used to name the mental element required for the crime of murder at common law, and goes back to at least the fifteenth century. In England, the term fell out of favour in the mid-to-late nineteenth century, being replaced with “intent”, but by then the term was already well-established in US legal practice, where in some jurisdictions (including South Carolina) it has survived codification and now appears in the statute book.
The classic English statement of meaning is probably the 1957 case of R -v- Vickers, where Lord Goddard, then the Lord Chief Justice says that which says that it’s a “term of art”, and that it has always meant intent to kill or cause serious injury. It’s “malice” because it’s a malicious intent (to kill or injure) and it’s “aforethought” because, if you intend to kill or injure while you perform the act of shooting (or whatever) you must have formed that intention before commencing the act, (even if only just before).
Premeditation, it seems to me, is the scenario that jtur 88 states:
That certainly is malice aforethought but it is also premeditation. Premeditation is not necessary for a charge of murder in SC. As stated by others, no appreciable time needs elapse for malice aforethought. Therefore, I cannot distinguish that from passion, which is manslaughter.
FWIW, the phrase does not appear in the definition of aggravated murder under Ohio law (Rev. Code 2903.01): “No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another’s pregnancy.”
I’m not seeing the difficulty here. …
“Passion” - “killed him/her/them before any thinking whatsoever.”
“Malice aforethought” - “Killed him/her/them after even a tiny smidgen of thinking.”
Passion ~= malice aforethought.
malice aforethought ~= Passion.
There is no third possibility.
This is a clear bright-line distinction as seen by legal scholars
Broadly speaking, there’s room for an implicit exoneration in the case of passion. But not so in the case of malice aforethought. A *thinking *citizen is expected to retain control over themselves regardless of provocation. It’s only via action before thinking (a known human limitation) that we gain a limited opportunity for exoneration.
Often the more detailed and ahead-of-time someone makes plans for a murder, all things being equal, the more likely they are to be hammered at sentencing, if convicted.
It’s the difference between a considered, deliberate action and a reflex. The brain can process dozens of variables, determine a course of action, and direct the body to carry it out, all in an insignificant amount of time.
But sometimes it doesn’t, and yet the act occurs anyway.
Personally, I’ve always felt this is a silly distinction. There is no appreciable difference to society between shooting your wife because you found her in bed with someone else, and shooting her because you know she’s been in bed with someone else.
I’m not sure that’s quite correct for my state. If any decision to kill is made, no matter how briefly it was considered by the actor, then it may be Murder. Heat of passion involves (in my state) an event where an actor would have reacted, without considering the consequences of his act, while he was still in the heat of the moment. He couldn’t walk into the other room, get a gun, come back, etc. as the jury may well determine that that was a sufficient amount of time to cool off and become rational.
I would suspect this differs greatly between the states though.
The foreman of the jury was on the Today show this morning. He said he initially thought murder but then saw that the defendant did not have any malice against the victim, so was voting for manslaughter.
Which is sort of incompatible with modern observations of how the mind works. All actions occour /before/ the brain notifes the executive function about what the action was.
I think (though I’m not a lawyer) that the distinction is between these two situations, not the distinction you have listed above.
a) A is carrying a hammer when he walks into his bedroom (because he’s going to put up a new picture in the room, or some such) sees his wife with another man, and attacks them with the hammer
b) A walks into his bedroom, sees his wife with another man, and picks up the hammer he left on the floor when he was putting up the new picture the other day (what a slob), and then attacks them with the hammer.
If I understand things correctly, in case b) prosecutors could argue that deciding to pick up the hammer indicated a decision to do harm had occurred, whereas if the hammer was already in A’s hands, they could not make that argument.
The decision to do harm arose in both situations. The foreman’s thoughts that no malice was present befuddles me. Malice can be expressed or implied.
Yeah, I have no idea about what the foreman is thinking. I’m just focusing on the theory behind the “aforethought” part.
The point isn’t malice or lack. The point of the distinction is forethought. Did you think first then do, or just do *before *thinking?
The distinction is a thin one. And meant to provide exoneration for ordinary people thrust into very extraordinary situations who then behave in extraordinary (for them) ways.
As others have said, the distinction flies a bit in the face of 21st Century knowledge of human cognition. And it definitely flouts some current simple-minded notions that the only thing that should matter is the result of an act, not the mental state leading up to doing it.
But as a legal doctrine the distinction between acts of passion and malice aforethought dates back hundreds of years. To a simpler era of upstanding people of rigid morals who may “lose their head” in the face of unspeakable provocation. Don’t be too eager to throw it out. Lots of babies have been jettisoned along with bathwater in the name of “legal reform” and “streamlined prosecution.”
Ask not for whom the gavel bangs; it bangs for thee.