Malice aforethought bedeutet den Vorsatz, der bewiesen werden muss, um den Angeklagten wegen Mord in England und Wales zu verurteilen. Es wird traditionell mit vorbedachte böse Absicht übersetzt. Der Begriff wird immer wieder von den Gerichten verfeinert. Er klingt einfacher, als er ist. Der Mord muss nicht geplant sein, es reicht, wenn in einer Messerstecherei einer in Augenblick des Zustoßens will, dass der Verletzte stirbt oder sehr schwer verletzt wird.

Malice aforethought is the form of mens rea (mental element required for conviction of most crimes) that makes a homicide murder in the common law. (Murder is still a common-law offence in England and Wales, whereas most criminal offences have been codified). The usual present possibilities of malice aforethought, roughly speaking (I’m not a legal scholar) are:

either
intending to kill, or
intending to cause grievous bodily harm, or
intending to do any act foreseeing death or grievous bodily harm as the natural and probable result (e.g. when driving away from the scene of a crime, knocking down and killing someone).

Of course, intention is a wide field (just like Vorsatz in German law).

Malice aforethought does not mean premeditated murder as the term is usually used, though, that is, not a planned murder. It’s sufficient if an attacker at the moment of attack wants the victim to die or to be very seriously injured. However, the term premeditated murder is sometimes used in this second sense too.

I see the topic was even mentioned in ‘The Professor and the Madman.
A Tale of Murder, Insanity, and the Making of The Oxford English Dictionary’ by Simon Winchester, which I haven’t read:

bq. The ‘malice aforethought’ which enters into the legal definition of murder, does not (as now interpreted) admit of any summary definition. A person may even be guilty of ‘wilful murder’ without intending the death of the victim, as when death results from an unlawful act which the doer knew to be likely to cause the death of some one, or from injuries inflicted to facilitate the commission of certain offences.

In what jurisdictions is the term still used? American states have statutory definitions of murder nowadays, but these often use the term malice aforethought. Here’s the federal definition of murder:

bq. Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree.

I have a Nolo Press book on criminal law that says first degree murder requires malice aforethought, but second-degree murder doesn’t. I don’t think that can be right – it’s manslaughter, voluntary or involuntary, that doesn’t require malice aforethought.

These unfinished ruminations relate to a post by Mark Liberman at Language Log.

That post is more concerned with the form of the words and whether the invented variant ‘malicious forethought’ is wrong or not. It quotes a number of dictionary definitions. Definitions from non-legal dictionaries always sound different from the pages and pages written on the term in criminal-law textbooks.

Incidentally, this closing remark:

bq. In the technical jargon recently invented for the purpose, the count of 2,990 Google hits for malicious forethought translates to 698 whG/bp (web hits on Google per billion pages), while malice aforethought’s 21,400 ghits is 4,994 whG/bp.

seems to have an unwarranted faith in Google’s ‘billion pages’. But perhaps there is an explanation for the huge numbers of hits you can never display.

Aus dem Spiegel Online:

bq. Zum G-8-Gipfel in Georgia tauften US-Schüler acht Meeresschildkröten zu Ehren der Teilnehmernationen auf landestypische Namen. Und so wurde Deutschlands Schildkröte “Ormanda” genannt. Was das bedeuten soll, können allerdings nicht einmal Sprachwissenschaftler erklären.

Press release of May 27th for the G8 summit in Georgia:

bq. ATLANTA, GA – Governor Sonny Perdue announced today the names for eight Georgia loggerhead sea turtles involved in a new satellite telemetry project that the Georgia Department of Natural Resources (DNR), Wildlife Resources Division (WRD) will launch in the coming weeks. Elementary school children from across the state submitted names for the sea turtles in honor of the countries participating in the G8 Summit, which are the United States, France, Germany, Japan, the United Kingdom, Italy, Canada, and Russia. The G8 Summit is scheduled for June 8 – 10, 2004 on Sea Island, Georgia.

The Spiegel article points out that Ormanda is not a German word. It does mean ‘in the forest’ or ‘in the wood’ in Turkish, though.

You can track the turtles here, although the German one has not yet appeared. The British one, Tea Cake, can be seen:

bq. Tea Cake is named for the traditional food served with afternoon tea, a favorite among residents of the United Kingdom. This name was submitted by Miss Maria Dixon, a 5th grade student of Mr. Harry Moss at Bethune Elementary in College Park, GA.

Personally, I think teacake should be all one word. I know they exist, but I have rarely had one. Anyway, I think you can get hot cross buns all year round now, although they’re not PC!

I gather the Japanese word is not too good either, and the Russian is still to be confirmed.

(Article mentioned on the pt German translators’ mailing list at Yahoo)

What’s new on the UK legal web? gives some links for punctuation and plain English for lawyers. One is a Lynne Truss quiz, and another is the Plain English campaign’s Plain English and the Law page, and especially ‘The longest sentence we have ever seen’.

The latest programme in the BBC radio series ‘Law in Action’ can be heard here till the next programme on Friday June 11th) has a section on whether Britain should have what is called a Good Samaritan law or good citizen law.

It’s difficult to draft such a law. One of the questions is ‘Who is the passer-by?’ The good Samaritan story has been called on before, in the case of Donoghue v. Stevenson in the early 1930s, extending the law of tort, when Lord Atkin (‘the Denning of his day’ passes through my mind) asked, ‘Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’

Here’s the case, also known as the snail in the ginger beer case.

Here’s a new approach to the good Samaritan parable, told in answer to a lawyer’s question, of course. You can watch a film of the parable, but it seems to have been transplanted to the American mid-west, and I don’t recommend it. Here’s the text from the King James Bible, Luke 10:25-10:37.

It looks to me as if Good Samaritan statutes cover more than this in the U.S.A. They may penalize those who don’t give assistance, but they may give immunity to those who do (because it is so risky for a doctor to stop to help someone for fear of medical negligence claims).

Following earlier entries on March 8th and March 24th, here is another article by Geoffrey Perrin uploaded as a PDF file.

This first appeared in German Teaching in June 1989, but the terms are still encountered constantly by translators.

Download file

The terms discussed are Abdruck, Ablichtung, Abschrift, Abzug, Ausdruck, Ausfertigung, Auszug, Doppel, Durchschrift/Durchschlag, Exemplar, Mehrfertigung, Reinschrift and Überstück (Kopie and Fotokopie are mentioned as the colloquial terms for Ablichtung, but I saw recently the term was unfamiliar to one of the German commenters at law blog).

Perrin concludes that there is no overall term for copy. Wiedergabe is rather papierdeutsch, and Kopie has not quite assumed the role.

One thing that seems to be missing is a mention of the legal use of Ausfertigung, which I would translate as office copy, the term I’ve encountered most often myself, or official copy, and which is a second original. And of course, fewer people were using computers in 1989 so carbon copies were more common, and probably no-one had dreamt of such a thing as a blind carbon copy.

It’s rather late to mention the Erlangen Kirchweih, because this is the last day. I did mention it elsewhere. However, here are some Kitzmann beer mats, picked up in a visit to Erlangen a few weeks ago.