Glenn v. State

MOYLAN, Judge. The crime of Assault with Intent to Murder went on the books in 1809. In 177 years, there has not been a single in-depth discussion of the special mental element that is the heart of the offense, with the lone exception of Jenkins v. State, 59 Md.App. 612 , 477 A.2d 791 , cert. granted, 302 Md. 46 , 485 A.2d 269 (1984), in which Judge Wilner compared the intent to murder with the intent to maim, disfigure, or disable. Relatively late in the life of the crime, several inadvertently adopted observations about the mental element were made.

Then, through an appellate process consisting largely of scissors and paste, those initial and uncritical observations came to be regularly repeated. There has never been, however, anything approaching a comprehensive analysis. The appellant, Britt D. Glenn, was convicted in the Circuit Court for Baltimore City by Judge Milton B. Allen, sitting without a jury, of both assault with intent to murder and the possession of marijuana. He does not challenge his conviction on the possession charge.

Neither does he ques ³⁸¹ tion the propriety of a conviction for simple assault. It is only the aggravating mens rea of a specific intent to murder that is in issue. Reversing the conviction for assault with intent to murder is easy. Explaining the reasons for the reversal in a way that may help forestall future reversals is more difficult.

The trial judge erred by following time-honored but misleading appellate road signs. The state’s attorney erred by plying the trial judge with dilapidated dicta from a pre1975 Baroque Age. The attorney general erred by beguiling us with the wrong part of a partial truth. The real source of error, however, is neither judge nor prosecutor nor appellate advocate but a case law still sadly riddled with imprecise generalities, elusive half-truths, and grandiose jabber.

By 1975, the case law on both consummated and inchoate criminal homicide had become, in Maryland and throughout the common law world, a Kafkaesque hall of mirrors. The first impression was dazzling, as orotund formulae were rhythmically and ritualistically intoned. The inner hollowness became apparent, however, once someone dared to ask the dreaded question, “What, precisely, does all of that mean?” The rich tapestry, like the Emperor’s new clothes, turned out to be a crazy quilt of misstatements, partial statements, and even contradictory statements. One close look exposed the verbal brocade as tatterdemalian.

In 1975, the Supreme Court, in Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975), and the appellate courts of this state, in Evans v. State, 28 Md.App. 640 , 349 A.2d 300 (1975), and State v. Evans, 278 Md. 197 , 362 A.2d 629 (1976), set out to clean the Augean Stables of the accumulated semantic debris and outworn linguistic usages of three centuries. Today’s reversal persuades us that the housecleaning needs to be repeated periodically. Squarely false statements are not the problem. They are easily and effectively eliminated from the case law.

The ³⁸² more elusive, and therefore more tenacious, culprit is the half-truth. Three such half-truths contributed to the error in this case. They are: 1. Assault with intent to murder is an assault under circumstances such that if the victim should die, the crime would be murder. 2.

Malice is that which separates murder from manslaughter. 3. One may infer malice from the directing of a deadly weapon at a vital part of the human anatomy. None of these statements is false. Yet none of these statements is true.

Each is sometimes true and sometimes false with chameleon-like and treacherous unpredictability. Each, moreover, is entrenched doggedly, if not inextricably, in our case law. Our present exhortation to bench and bar is that none of these statements should ever be uttered or written again—at least, not in such partial and imprecise a form. We will turn to each of these half-truths as we assess not the evidence of the appellant’s culpability but the legal significance of that culpability.

The facts are no longer in dispute (if they ever were). The evidence supported the judge’s findings of fact. The facts, so found, were that the 20-year-old appellant stabbed Frank Rizo four times, twice in the arm, once on the right side of the abdomen at the bottom of the rib cage, and once in the waist. Criminal agency was clear.

The only issue is whether the appellant stabbed his victim with that aggravating mens rea that raises the common law misdemeanor of simple assault to the statutory felony of assault with intent to murder. The First Half-Truth: ASSAULT WITH INTENT TO MURDER IS AN ASSAULT UNDER CIRCUMSTANCES SUCH THAT IF THE VICTIM SHOULD DIE, THE CRIME WOULD BE MURDER. Assault with intent to murder is an inchoate crime, but inchoate to what? Is it inchoate to all of criminal ³⁸³ homicide?

Is it inchoate to murder generally? Or is it inchoate to but one particular form of murder? One cannot analyze the inchoate crime of assault with intent to murder without analyzing the matrix of consummated crimes that constitute criminal homicide. One must hypothesize the death of the assault victim and then determine what the crime would have been in that imagined eventuality.

What is involved is the relationship between the mens rea of murder and the mens rea of assault with intent to murder. The problem is that since the crime of Assault with Intent to Murder was first placed upon the Maryland statute books in 1809, 1 there has never been an adequate definition of it. Our attempt will be to fill that void. A simplistic first effort at definition could be, “Assault with intent to murder is an assault under circumstances such that if the victim should die, the resulting crime would be murder.” Our pre-Mullaney case law was addicted to such simplistic definition. 2 It was, to be sure, at least ³⁸⁴ partially correct.

In terms of levels or degrees of blameworthiness, it served the necessary purpose of separating murder (first or second-degree), on the one hand, from manslaughter, excusable homicide or justifiable homicide, on the other hand—the latter three not representing hypothesized predicates which could support a finding of assault with intent to murder. Since that was the only discrimination the courts were being called upon to make in the cases employing that definition, it worked. It did so, moreover, without causing any mischief in the process. For that very same reason, however, the definition has no inadvertent authoritative significance for other distinctions not before the courts and not contemplated by the courts on those occasions.

The definition, on reflection, turns out to be a partial definition. It performs well its sorting function along the appropriate vertical axis, separating the two higher and murderous degrees of blameworthiness above, from manslaughter and the lesser levels of blameworthiness below. It ignores totally, however, the other possible sorting function along the horizontal axis among the various kinds (as opposed to degrees) of murderous mentes reae. A brief bit of background is perhaps necessary.

Since the early seventeenth century, murder has been, in terms of its mental element, a pluralistic rather than a monolithic phenomenon. The key to a conceptual understanding of the law of murder is to think plural. When death results from the act of the homicidal agent, not one but four distinct intents or states of mind are now deemed sufficiently reprehensible to justify a finding of murder. A murder conviction may thus be supported by proof of any one of ³⁸⁵ four separate mentes reae.

Without going into elaborate detail, the four types or kinds of murder, each with its distinctive mens rea, are almost universally referred to as: [[Image here]] The presence of one of these intents is an indispensable ingredient, although not the only necessary ingredient, of that slippery legal concept known as “malice.” Indeed, the text writers have for 300 years referred to the original murderous mens rea—the intent to kill—as “express malice.” They have also referred to the latter three murderous mentes reae—all of which came into homicide law during its rapid evolution in the early seventeenth century—as the three forms of “implied malice.” 3 The original legal fiction, of course, was that any of the latter three states of mind “implied” the former; proof of any of the latter three intents was a predicate fact from which the fact finder could permissibly infer the intent to kill. Legal analysis has now reached a point of sophistication, however, where we recognize that each of these four intents is independently blameworthy enough to support a murder conviction. Each is an autonomous murderous mens rea in its own right and not a mere evidentiary avenue to one of the others. ³⁸⁶ The multiplication of criminally homicidal mentes reae has been two-dimensional. On the horizontal axis, we have the four kinds of murder—the four distinct types of murderous mentes reae.

On the vertical axis, moreover, each of the four types comes (at least theoretically) in three degrees of blameworthiness: 1) large, 2) medium, and 3) small—1) aggravated, 2) normal, and 3) mitigated—1) first-degree murder, 2) second-degree murder, and 3) manslaughter. Using representative, but not exhaustive, possibilities, the full matrix could appear: [[Image here]] The first vertical column, at the left, involving the “intent to kill” homicides, represents intentional murder, at the higher levels, and voluntary manslaughter, at the mitigated level. The other three vertical columns embrace the unintentional murders, 4 at the two higher levels of blameworthiness, and the involuntary manslaughters, at the mitigated level. ³⁸⁷ How many of these twelve kinds and degrees of criminally homicidal mentes reae will establish the crime of assault with intent to murder? The partial definition of assault with intent to murder, already in vogue, is serviceable to eliminate the lowest horizontal rank, representing the four basic types of manslaughter.

This elimination takes place, of course, because the degree of blameworthiness for that entire rank is less than murderous, whereas the aggravated mens rea that needs to be established is a specific intent to murder, not merely a specific intent to kill. What remains to be decided—what is not covered by the partial definition—is what distinctions need to be made among the vertical files or fundamental kinds 5 (not simply degrees) of homicidal mentes reae. This has never yet been squarely addressed by a Maryland appellate decision. Fortunately, the statute is sufficiently clear to speak for itself.

Assault with intent to murder is, by its very wording, a specific intent crime. The obvious question is, “The specific intent to do what?” The obvious answer is, “The specific intent to bring about the death of the assault victim.” In terms of the clear and unambiguous meaning of words, it is inconceivable that there could be an intent to murder the victim that did not intend for the victim to die. Except in the pages of Bram Stoker, it simply is not contemplated that the victim of an intended murder will continue to be alive. Intended murder, by definition, com ³⁸⁸ prehends, inter alia, an intended killing, to wit, an intent to kill. 6 There may, of course, be unintended murder without the intent to kill.

It is for that reason that an unintended murder (actual or hypothetical) does not establish an anteri- or assault with intent to murder. Since murder may be unintended as well as intended, it is obviously broader than the intent to murder. The narrow and singular mens rea of assault with intent to murder in contrast to the broader and multiple mentes reae of consummated murder has been duly noted by the textbook writers. Clark & Marshall, Law of Crimes (6th ed., Wingersky rev. 1958), observes, at 651: “The fact that the killing would be murder (§ 10.04) is not enough, for there may be murder without any intent to kill.

To constitute an assault with intent to murder the specific intent is necessary.” ' The narrower mens rea of the inchoate crime has been similarly commented upon by R. Perkins, Criminal Law (2d ed. 1969), at 763: “Murder may be committed without an actual intent to take life. ‘But to constitute the offense of an assault with intent to murder there must be a specific intent to kill.’ Hence it is error to instruct the jury that the same facts and circumstances which would make the offense murder, if death had ensued, will furnish sufficient evidence of intention to convict of assault with intent to murder.” Of the four basic types of murder, specific-intent-to-kill murder is the only one wherein there is a conscious and purposeful design to accomplish the death of the victim. None of the others contains, as a necessary element, any intent that the victim die. A depraved-heart murder is a mere general intent crime—the general intent to do the reckless, life-endangering act with wanton disregard of the human consequences. A felony-murder has no necessary specific intent that harm should come to a victim, let alone ³⁸⁹ that the victim should die.

There is merely a general intent to perpetrate a felony. Some felonies, of course, include lesser specific intents, but not an intent that death result. With respect to both depraved-heart murder and felony-murder, the death of the victim is not only unintended but sometimes not even reasonably foreseen. In the wake of Mullaney v. Wilbur, supra, we began to draw our distinctions more carefully.

We noted, in Blake v. State, 29 Md.App. 124 , 126 n. 1, 349 A.2d 429 (1975): “It is sometimes stated that the assault must be ‘committed under circumstances such that, if death ensued, the crime would have been murder in either the first or second degree.’ Davis v. State, 204 Md. 44, 50 , 102 A.2d 816 . That statement, true enough for most cases, is, however, too broad.” In then beginning to draw the more subtle distinctions among the four murderous mentes reae, we did not, on that first try, adequately come to grips with intent-to-do-grievous-bodily-harm murder. We did, at least, effectively eliminate the hypothesized felony-murders and depraved-heart murders as predicates for an antecedent assault with intent to murder: “It would appear equally clear that an assault with intent to murder conviction could not be predicated upon the other two varieties of ‘implied malice’—felony-murder or the ‘wanton and wilful disregard of unreasonable human risk.’ ” 29 Md.App. at 127 n. 1, 349 A.2d 429 . And see Finnegan v. State, 33 Md.App. 251, 255-256 , 364 A.2d 124 (1976).

The process of analytical sophistication had at least begun with our observation that: “Since assault with intent to murder requires a specific intent of achieving a particular result, it is clear that it is more restricted in its mental elements than would be the resultant murder itself.” 33 Md.App. at 256 n. 1, 364 A.2d 124 . In the case of intent-to-do-grievous-bodily-harm murder, on the other hand, the failure of that intent to establish ipso ³⁹⁰ facto—by automatic operation of law—the intent to murder is not so immediately apparent. This is so because there is, in these cases, an actual harm specifically intended for the assault victim. Thus, this form of murder is a specific-intent crime rather than a mere general-intent crime.

The critical distinction that needs to be made, however, is between the results specifically intended, not between the presence or absence of a specific intent. Although there is the purpose or design that the victim should suffer serious physical harm, there is no necessary purpose or design that the victim should die. This was the distinction so ably analyzed by Judge Wilner in Jenkins v. State, supra, at 59 Md.App. 618 , 477 A.2d 791 : “An intent to maim, disfigure, or disable [virtually if not completely indistinguishable from the intent to do grievous bodily harm] necessarily falls short of, and thus excludes, an intent to kill. The actor’s object in such a case is not to end the victim’s life, but to have him linger on, either temporarily or permanently, in a disabled or disfigured condition.

Conversely, although death is obviously the ultimate form of disablement, it is far more than that; one does not generally regard a killing as merely an extreme form of disablement. It is not the marking or hobbling of the victim that is really intended, but the termination of his very existence. That is the critical, overriding intent, even if death is to be preceded, or caused, by injuries that but for the death would constitute a disfigurement or disablement. Thus, both rationally and realistically, an intent to kill excludes the lesser intent merely to maim, disfigure, or disable.” (Emphasis in original).

What seems clear, on serious reflection, is that, where an assault is involved at least, the inchoate form of intent-to-kill murder is assault with intent to murder, whereas the inchoate form of intent-to-commit-grievous-bodily-harm murder is assault with intent to maim, disfigure, or disable. The persistent difficulty—the inadvertent source of so much misleading appellate language—has been the chronic ³⁹¹ failure to distinguish between the evidentiary significance of the intent to commit grievous bodily harm and the legal significance thereof. As an evidentiary matter, the proof of an intent to commit grievous bodily harm can serve, and almost universally does serve, as a legally sufficient predicate to support the inference of the necessary intent to kill. 7 ³⁹⁴ In a theoretical situation, however, such as that discussed in Jenkins v. State, supra, where there might be found as a matter of fact a specific intent only to harm the victim grievously without any purpose to kill him, 8 there would be, by definition, no specific intent, design, or purpose that the victim should die. The intent, rather, could be quite to the contrary.

In distinguishing the intent to kill from something just as bad, but different, a helpful analogy is found in the statute law elevating certain of the more blameworthy types of murder to the first degree. Of the various modes of aggravation, the best known is that of “willful, deliberate and premeditated killing.” Article 27, § 407. This particular form of aggravation applies only to intent-to-kill murder, not to the other three types. (Other modes of aggravation may raise other forms of murder to the first-degree plateau).

It is the killing itself that must be premeditated, not the infliction of grievous bodily harm, not the perpetration of a felony, and not the reckless, life-endangering act. Of ³⁹⁵ the blameworthy mental states, the specific intent to kill has always occupied a special niche of its own. It was, of course, the prototype. It is today the only mens rea that rises to the first degree when premeditated.

It is similarly the only mens rea shadowed by an inchoate junior partner of assault with intent to murder. The legislative scheme itself, moreover, demonstrates the obvious legislative intent to restrict assault with intent to murder to the hypothesized intent-to-kill murders. It is clear that every intent to perpetrate a felony does not ipso facto constitute an intent to murder, lest every assault with intent to rob under Article 27, § 12, with its ten-year maximum sentence, constitute automatically an assault with intent to murder, with its thirty-year maximum sentence. If it were otherwise, every assault with intent to rape under Article 27, § 12, with its fifteen-year maximum sentence, would constitute automatically an assault with intent to murder, with its thirty-year maximum sentence.

By the same token, the intent to inflict grievous bodily harm does not ipso facto, as a matter of law, constitute an intent to murder, lest every assault with intent to maim, disfigure, or disable under Article 27, § 386, with its ten-year maximum sentence, constitute automatically an assault with intent to murder, with its thirty-year maximum sentence. We cannot ascribe to the Legislature an intent to enact superfluous criminal statutes and contradictory sentencing provisions. May v. Warnick, 227 Md. 77, 83 , 175 A.2d 413 (1961); Farmers & Merchants Bank of Hagerstown v. Schlossberg, 306 Md. 48, 61 , 507 A.2d 172 (1986); Equitable Life Assurance Society of the United States v. Jalowsky, 306 Md. 257, 263 , 508 A.2d 137 (1986). When the case law points out, therefore, that the “intent to murder” is not coterminous with the “intent to kill,” 9 it does not remotely suggest that it includes intents other than the intent to kill.

The statement is uttered only in the ³⁹⁶ context of exempting those intents to kill that are, in terms of their blameworthiness, less than murderous. The intent to murder necessarily includes at its very core the intent to kill, but adds limiting modifications as well. The intent to murder comprehends the unjustified, unexcused, and unmitigated intent,to kill. 10 Many instances of justifiable or excusable homicide, such as various forms of self-defense, involve the specific intent to kill. Certain forms of mitigated homicide, such as hot-blooded response to legally adequate provocation, similarly involve a specific intent to kill.

The reason for distinguishing the intent to murder from the intent to kill is to exempt from the embrace of the assault with intent to murder statute those intents to kill that would be justified, excused, or mitigated, should death result. The intent to murder, in contrast to the intent to kill, is a more restrictive, not a more enveloping term. That it does not embrace all intents to kill does not suggest that it embraces something other than the intent to kill. The logically compelling conclusion that an intent to murder necessarily requires a specific intent to kill has been recognized by W. LaFave & A. Scott, Criminal Law (1972), at 607, n. 27: “Some aggravated-assault statutes are worded ‘with intent to murder/ others ‘with intent to kill.” The former wording, like the latter, requires a specific intent to kill; this is so even though murder itself may be committed without an intent to kill, as with murder with intent to do serious bodily harm, depraved-heart murder and felony murder.” Of the twelve types and degrees of homicidal mentes reae, therefore, but two remain to support a conviction for assault with intent to murder: ³⁹⁷ [[Image here]] Thus, assault with intent to murder is not the inchoate form of murder generally, but only the inchoate form of one particular type of murder.

One can intend only that type of murder which, if done, would be intentional. It is a truism that one cannot intend the unintended. What is called for is a more precise definition. It must include the “intent to kill,” so as to eliminate the other three vertical files or basic types of criminally homicidal mentes reae.

It must also include “under circumstances such that if the victim should die, the crime would be murder,” so as to eliminate those less blameworthy intents to kill that are 1) justified or excused, thereby totally exculpating the assailant, or 2) are mitigated, thereby lowering the degree of guilt to the manslaughter level. ³⁹⁸ The First Full-Truth: ASSAULT WITH INTENT TO MURDER IS AN ASSAULT WITH INTENT TO KILL UNDER CIRCUMSTANCES SUCH THAT IF THE VICTIM SHOULD DIE, THE CRIME WOULD BE MURDER. With that definition before us, we turn to the facts of the present case. With ample support in the evidence, the trial judge found that the appellant did, indeed, assault Frank Rizo four times with a knife with the intent to kill him. We are within the proper vertical column of hypothesized intent-to-kill murder.

The conviction is still on the tracks. It remains to be seen whether we are at the proper horizontal rank or level of hypothesized blameworthiness. The Second Half-Truth: MALICE IS THAT WHICH SEPARATES MURDER FROM MANSLAUGHTER. Once again, the key to understanding is in thinking plural.

Malice, like Gaul, is divided into three parts. It is not a singular phenomenon, but a compound one. Some things may be true about one of the parts which are untrue of another. The evidence which may go to prove one of the parts may be utterly irrelevant to proof of another.

The hazard in the use of the compound term is that people, thinking exclusively about one of the parts, inadvertently speak in terms of the whole. “Ahah,” said the blind man, feeling the tail of an elephant, “so an elephant is like a snake.” “Malice” is a semanticist’s nightmare. It is foolhardy even to use the term without at least a rudimentary understanding of where it came from and what changes it has undergone. To begin with, it does not stand alone but is almost always followed by the now vestigial appendage “aforethought,” a vestige that nonetheless sheds light on much of the total phrase’s original meaning. Over the centuries, “malice aforethought” lost a great deal of its ³⁹⁹ original content but has taken on a great deal of new content.

It is a source of inevitable confusion that “malice aforethought” today is neither “malicious” nor “thought of beforehand.” It has, of course, become commonplace to lawyers that “malice” connotes nothing which would strike a layman as “malicious.” It has come to mean simply an intention to commit a criminal act with no hatred or ill-will required. As Holmes noted: “It is just as much murder to shoot a sentry for the purpose of releasing a friend, as to shoot him because you hate him. Malice, in the definition of murder, has not the same meaning as in common speech, and, in view of the considerations just mentioned, it has been thought to mean criminal intention. [A] newly born child is laid naked out of doors, where it must perish as a matter of course. This is none the less murder, that the guilty party would have been very glad to have a stranger find the child and save it.” 11 Equally to the point is Professor Perkins: “In ordinary conversation the word ‘malice’ conveys some notion of hatred, grudge, ill-will, or spite, but no such idea is incorporated in the legal concept of ‘malice aforethought.’ ... [TJhis crime may be perpetrated without the slightest trace of personal ill-will.

Illustrations 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.’ There may be added the case of the husband who killed his wife at her request, because his love was too great to permit the continuance of her suffering from a hopeless disease. ⁴⁰⁰ Even such extreme cases as these have been held to fill every requirement of malice aforethought____” 12 The concept of malice aforethought first entered English common law through a series of Tudor statutes between 1496 and 1547, which provided that all murders carried out with “malice prepense” or “malice aforethought” would be non-clergyable (to wit, capital) and that other murders would be clergyable (to wit, non-capital). 13 This distinction was the first effort by the common law to separate, for punishment purposes, a more heinous degree of murder (that perpetrated with malice aforethought) from a still-criminal but extenuated form of murder (that perpetrated without malice aforethought). This first effort at mitigation did not distinguish malice from non-malice. The malice component was shared by both degrees of murder. The stress was on the participle “aforethought.” The only distinction was between malice aforethought and malice non-aforethought.

Both degrees of murder possessed the necessary malice component. Malice embraced the intent element, at that time only the intent to kill. (The other forms of murderous intent, the three varieties of “implied malice,” would enter the common law approximately 100 years later). Malice also included, as a necessary element, that the intent to kill was without justification or excuse (for example, not in self-defense and not in line of duty), for either excuse or justification would have totally exculpated the defendant.

The distinction was that of whether the unjustified and unexcused intent to kill (the malice) had been thought out well in advance or whether the unjustified and unexcused ⁴⁰¹ intent to kill (the malice) had been a spontaneous and spur-of-the-moment decision. The purpose of the distinction was clear. The common law was striving to separate qualitatively the two essential kinds of unlawful homicide then perplexing the Realm—1) the deliberate killing from ambush on a lonely forest trail or in a darkened London alley from 2) the impulsive killing in a village brawl as one combatant angrily smashed in a head with a quarterstaff or ran through a stomach with knife or sword. This latter variety of homicide—chaud medley or chance medley (not condoned but readily understood by a rude and riotous folk)—would someday give rise to modern manslaughter.

The first effort to extenuate it, however, was along the timeline. It was initially deemed less blameworthy (to wit, mitigated) because it was a spontaneous, spur-of-the-moment decision without malice aforethought, in contradistinction to the more dreaded bushwhackings and ambuscades carried out with malice aforethought. Thus it came to be that the total concept of “malice aforethought” embraced three separate but related elements. “Malice” supplied the first two components: 1) The intent to kill (later to be joined by three alternative, sibling intents); 2) The absence of justification or excuse; and “aforethought” supplied the third component: 3) The absence of mitigation. “Malice aforethought” then underwent a century of rapid development, as “malice” multiplied fourfold and “aforethought” shriveled up to the point of ultimate disappearance. It was the intent component of malice that underwent the rapid growth, as the original “express” malice was joined by the three forms of “implied” malice.

That growth need not concern us here. It was the evaporation of “aforethought” to the point where nothing was left that led to the birth of manslaughter as an alternative mitigating device. ⁴⁰² “Aforethought,” in its pristine state, connoted that the intention to kill had existed some appreciable time before the actual execution of the deed. It connoted the same thing by way of preplanning that premeditation connoted early in the 19th century (when it entered the law as an attempt to rejuvenate the earlier meaning of “aforethought”) and significantly more by way of preplanning than premeditation connotes today (premeditation having in the meantime suffered a semantic erosion of its own). The word “aforethought” today is devoid not simply of an ordinary, layman’s meaning, but of any meaning at all, even as a term of art.

As is pointed out by Professor Perkins: “Undoubtedly the word ‘aforethought’ was added to ‘malice’ in the ancient cases to indicate a design thought out well in advance of the fatal act. But as case after case came before the courts for determination, involving killings under a great variety of circumstances, there came to be less and less emphasis upon the notion of a well-laid plan. And at the present day the only requirement in this regard is that it must not be an afterthought. ‘Killing with malice’ is sufficient of itself to negative any possible notion of an afterthought, and apart from the historical background the word ‘aforethought’ would not be needed.” 14 To the same effect is Professor Purver: “Just as the word ‘malice’ confuses and misleads, the word ‘aforethought’ likewise muddles thinking: ‘The fact that malice aforethought means merely that malice must exist at the same time as the act, in effect makes “aforethought” meaningless surplusage, since the requirement is satisfied by the presence of malice or “concurrent” malice rather than an antecedent malice. The unimportant character of the adjective “aforethought” is seen in the fact that in many opinions “malice” and “malice aforethought” are used inter ⁴⁰³ changeably and that in many “aforethought” is itself omitted.’ Since today ‘aforethought’ may be ‘as instantaneous as successive thoughts of the mind’ or ‘on the spur of the moment/ the word no longer serves its original function of drawing attention to the duration of the deliberation to