A Re-Examination of Malice Aforethought

MALIcE aforethought is one of the most common watchwords in the homicide cases.Has it a real contribution to offer, or is it merely a euphonious phrase used to conceal the absence of an idea?In the endeavor to probe for the import of this ancient term, no avenue of approach seems more suitable than an inquiry into what it very clearly does not mean.It does not, for example, indicate either "malice" or "aforethought" in what may be called the face value of these words."Malice," as it is commonly used in the street, implies hatred, grudge, illwill or spite.But no such notion is incorporated in the expression "malice aforethought." 1 A homicide committed for no purpose other than to satisfy a feeling of hatred or grudge will be murder, 2 it is true, but this crime may be perpetrated without the slightest trace of personal ill-will.Illustrations of this include the case of a mother who kills her illegitimate offspring to hide her own disgrace, feeling at the time no hatred toward it or any other person and even having the yearnings of a mother's love toward the innocent victim-loving its life just less than her own reputation. 3There may be added the suicide pact between the pair whose illicit love was so great as to make death seem preferable to living apart.As a result of this agreement the man, with great reluctance, shot the woman and then turned upon himself the weapon which failed at that time to discharge. 4Even more illuminating is the case of the husband who killed his wife at her request, because his love was too great to permit