Malice, as used in the term malice aforethought, is not the intent to vex or annoy. Nor is it hatred of the victim. Malice exists when the defendant desires the victim’s death or is indifferent to whether the victim lives or dies. Malice is apparent in three criminal homicide situations: the defendant intends to kill the victim, the defendant intends to cause serious bodily injury to the victim, or the defendant has a depraved heart and does not care if the victim lives or dies.
The specific intent to kill the victim corresponds with the Model Penal Code’s purposely murder mental state and is often referred to as express malice. 1The intent to cause serious bodily injury corresponds with the Model Penal Code’s knowingly or recklessly murder mental states and is often referred to asimplied malice. Serious bodily injury is a technical term and is generally defined in a state statute or by case law. The Model Penal Code defines serious bodily injury as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ” (Model Penal Code § 210.0(3)). The depraved heart intent is also impliedmalice 2 and corresponds with the Model Penal Code’s knowingly or recklessly murder mental states, depending on the attendant circumstances.
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