ICJI 702

ICJI 702 MALICE-DEFINED

Malice may be express or implied.

Malice is express when there is manifested a deliberate intention unlawfully to kill a human being.

Malice is implied when:

1. The killing resulted from an intentional act,

2. The natural consequences of the act are dangerous to human life, and

3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.

When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.

The word "aforethought" does not imply deliberation or the lapse of time. It only means that the malice must precede rather than follow the act.

Comment

I.C. � 18-4002.

Do not use this instruction if the only murder charge is felony murder or murder by the intentional application of torture because these crimes do not require proof of malice aforethought. Idaho Code � 18-4001; State v. Pratt, 125 Idaho 594, 873 P.2d 848 (1994); State v. Lankford, 116 Idaho 860, 781 P.2d 197 (1989).

There is no legal distinction between malice and malice aforethought. State v. Dunlap, 125 Idaho 530, 873 P.2d 784 (1993).

When the charge is attempted second degree murder, this instruction must be amended to delete any reference to implied malice. The intent to kill is required for attempted second degree murder. State v. Buckley, 131 Idaho 164, 953 P.2d 604 (1998).

"The general malice definition found under I.C. � 18-101 does not properly describe the 'malice' required for murder." See State v. McDermott, 169 Idaho 892, 505 P.3d 678, 684 (2022).

Revised: April 21, 2023