[52] “Malice aforethought means any one or more of the following
states of mind ..... “(a.) An intention to cause the death of, or
grievous bodily harm to, any person, whether such person is the
person actually killed or not; “(b.) Knowledge that the act which
causes death will probably cause the death of, or grievous bodily
harm to, some person, whether such person is the person actually
killed or not, although such knowledge is accompanied by
indifference whether death or grievous bodily harm is caused or
not, or by a wish that it may not be caused; “(c.) An intent to
commit any felony whatever; “(d.) An intent to oppose by force
any officer of justice on his way to, in, or returning from the
execution of the duty of arresting, keeping in custody, or
imprisoning any person whom he is lawfully entitled to arrest,
keep in custody, or imprison, or the duty of keeping the peace or
dispersing an unlawful assembly, provided that the offender has
notice that the person killed is such an officer so employed.”

Malice, as used in common speech, includes intent, and something more.  When an act is said to be done with an intent to do harm, it is meant that a wish for the harm is the motive of the act.  Intent, however, is perfectly consistent with the harm being regretted as such, and being wished only as a means to something else.  But when an act is said to be done maliciously, it is meant, not only that a wish for the harmful effect is the motive, but also that the harm is wished for its own sake, or, as Austin would say with more accuracy, for the sake of the pleasurable feeling which knowledge of the suffering caused by the act would excite.  Now it is apparent from Sir James [53] Stephen’s enumeration, that of these two elements of malice the intent alone is material to murder.  It is just as much murder to shoot a sentry for the purpose of releasing a friend, as to shoot him because you hate him.  Malice, in the definition of murder, has not the same meaning as in common speech, and, in view of the considerations just mentioned, it has been thought to mean criminal intention. 1

But intent again will be found to resolve itself into two things; foresight that certain consequences will follow from an act, and the wish for those consequences working as a motive which induces the act.  The question then is, whether intent, in its turn, cannot be reduced to a lower term.  Sir James Stephen’s statement shows that it can be, and that knowledge that the act will probably cause death, that is, foresight of the consequences of the act, is enough in murder as in tort.

For instance, a newly born child is laid naked out of doors, where it must perish as a matter of course.  This is none the less murder, that the guilty party would have been very glad to have a stranger find the child and save it. 2