Odger's English Common Law

MALICE AFORETHOUGHT. 275
felony of murder, and must be sentenced to death. 1
This
crime cannot be tried at Quarter Sessions. The gist of the
offence is the presence of " malice aforethought express or
implied." If this be absent, the crime cannot be more than
manslaughter.
On an indicbment for murder the jury may convict the prisoner of man-
slaughter ; and it is the duty of the judge to inform the jury that they
have power to do so, if they think it right, provided there are facts and
circumstances which would justify them in so doing ;
and this is so " what-
ever the line of defence adopted by counsel " for the prisoner. 2 On this
indictment also, if the victim be a child recently born, the prisoner can by
special statute be convicted of the misdemeanour of concealment of birth. 8
The prosecution has in the first place to prove that the
prisoner caused the death of the deceased within the meaning
of the rules laid down in the preceding chapter. As soon as
this is established, it will by a well-known rule of law be presumed
that the prisoner intended to cause that death. Hence
the burden of proving that he did not in fact so intend lies
strictly on him . But in actual practice the prosecution usually
accepts the onus of proving malice aforethought, instead of
calling upon the prisoner to disprove it.
What then is " malice aforethought " ? The phrase, in its
original and only proper meaning, signifies this—that the
prisoner, before he struck the blow or did whatever other act
caused the death, had conceived the deliberate intention of
killing some one. It is not essential that the prisoner should
bear personal ill-will or hatred against his victim. Thus
if A. deliberately intended to kill B. and does so
if A. deliberately intended to kill B. and kills C. in
mistake for B.
;
if A. deliberately intended to kill the first man he might
meet, and does so
;
in all three cases he is clearly guilty of causing death with
express malice aforethought.
1 This is so, although the jury may have strongly recommended the prisoner to
mercy, and although the judge is sure that the death penalty will not be inflicted.
Since 1868 the execution must take place within the prison and in the presence only
of such persons as the sheriff may think it right to admit (31 & 32 Vict. c. 24, s. 2).
» R. v. Mopper, [1915] 2 K. B 431, 435.
8 24 & 25 Vict. c. 100, s. 60
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