[net.abortion] "Malice Aforethought" as Required for Murder

matt@brl-tgr.ARPA (Matthew Rosenblatt ) (10/17/85)

In article 2101, PAUL W. KARBER gives a good example of why a difference 
in legal rights does not mean the difference between a "full legal human
being" and something less.  Mr. Karber's dictionary gives a correct
definition of murder:

> Anyway, my dictionary defines murder as killing (a human being)
> unlawfully and with premeditated malice.  [P. W. KARBER]

This agrees with the definition in Black's Law Dictionary, taken
from a case called State v. Hunt:

"The unlawful killing of a human being by another human being
with malice aforethought."

In a previous article, I tried to give the definition from memory,
including stuff about "without justification or excuse," but that
business is included in the word "unlawful."

Mr. Karber then goes on to say:

> (malice is defined
> as the desire to see another suffer).

I hate to disagree publicly with so able a spokesman for my side,
the pro-life side, in the abortion debate.  But "malice" in the
legal term "malice aforethought" has a technical meaning, defined
by the case law, which has little if anything to do with its
everyday meaning as the desire to see another suffer.  (It also
has little to do with the technical legal meaning of "malice" in
a libel case under New York Times v. Sullivan.)  

Obviously, I don't have available all the statutory definitions,
but in one criminal law textbook, the statutes pertaining to
different kinds of homicide, as defined in New York State as of
1967, are set forth -- manslaughter, murder, etc.  In the initial
paragraph, "homicide" is defined as the killing of a human being
under circumstances that fit one of the definitions in the 
sections that follow.  There are ellipses (three dots: . . . )
in this definition of homicide, and a footnote says that the
editors of the textbook have omitted those parts of the text
referring to abortion.  To me, this indicates that, at least
in 1967 New York State, abortion was considered a form of
homicide.

If any of you readers is an attorney or law student with access
to a good law library, please try to reconstruct this 1967 
statute for us, and post the complete wording (including
references to abortion) in the net.  Failing that, I shall
post a request in net.legal (to which I do not subscribe)
for the same information.  Thank you.

And thank you, Mr. Karber, for your continuing support of the
pro-life position!

				-- Matt Rosenblatt