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Meaning of Malice in Criminal Law

police tape and blood at murder scene

The term “malice” is often used in criminal contexts. It is the factor that could make or break a person’s case, as malice is often a component of serious crimes.

In criminal law, malice is defined as the intention to commit an unlawful act without justification or excuse. It is a state of mind. In many criminal cases, a defendant demonstrates malice when they act deliberately with a calm mental state or with a plan, or do something cruel on purpose without being significantly provoked.

However, malice is not simply a feeling. A person does not show malice because they hate or dislike someone. A person shows malice when they intentionally commit a crime without a reasonable excuse.

With this in mind, crimes involving malice are typically those that end in death or injury. Homicide, aggravated battery, arson, rape, and kidnapping are examples of crimes that often involve malice.

What Are the Two Types of Malice?

Malice can either be express or implied. Express malice is the deliberate intention to do something unlawful, while implied malice occurs when a person shows a “depraved heart” by committing a crime without being considerably provoked.

Express malice is easier to identify than implied malice, as express malice is quite obvious. Implied malice, on the other hand, requires some work to uncover. For instance, someone may not have intended to hurt or kill another, but their actions say otherwise.

See more examples of malice below to understand the difference between express and implied malice.

Express malice

  • Punching a person in the head and neck until they lose consciousness
  • Pointing and shooting a gun at someone
  • Poisoning your ex’s food on purpose
  • Intentionally withholding someone’s inhaler while they’re having an asthma attack
  • Telling someone to move off the road or they’ll be dead, and hitting them with your car when they don’t move

Implied malice

  • Letting your child play with sharp knives without supervision
  • Committing a DUI for the second, third, or fourth time (or more)
  • Letting dogs with a dangerous history run around at a dog park where others are present
  • Driving around and throwing bricks at houses
  • Jokingly pointing a gun at another person while drunk at a party, and accidentally discharging it

Malice Aforethought Definition in Criminal Law

Malice aforethought, like malice, is the mental element, or “mens rea” required to prove first-degree murder in several states and federal law. In Wisconsin, first-degree intentional homicide is synonymous with murder, although, WI statutes do not explicitly use the term “murder.”

First-degree intentional homicide in Wisconsin occurs when a person causes the death of another person with intent, or premeditation. In this context, since malice means “intent to kill” and aforethought is defined as “premeditated,” then first-degree intentional homicide is inherently committed with malice aforethought. You can’t get charged for this crime if you didn’t demonstrate malice aforethought.

Malice can occur without aforethought, but malice aforethought can’t occur without malice. The difference between the two is malice aforethought involves premeditation in murder cases primarily while malice can apply in various criminal and civil contexts.

Are you facing homicide charges? Get a criminal defense attorney with prosecutorial insights on your team. To learn how we can help minimize the impacts of your charges, contact us at (414) 882-8382!