OUJI-CR 4-62

MURDER IN THE FIRST DEGREE -

DEFINITION AND EXPLANATION OF MALICE AFORETHOUGHT

"Malice aforethought" means a deliberate intention to take away the life of a human being. As used in these instructions, "malice aforethought" does not mean hatred, spite or ill-will. The deliberate intent to take a human life must be formed before the act and must exist at the time a homicidal act is committed. No particular length of time is required for formation of this deliberate intent. The intent may have been formed instantly before commission of the act.

[If you find that [Name of Defendant] deliberately intended to kill [Name of Intended Victim], and by mistake or accident killed [Name of Actual Victim], the element of malice aforethought is satisfied even though [Name of Defendant] did not intend to kill [Name of Actual Victim]. In such a case, the law regards the intent as transferred from the original intended victim to the actual victim.]

Notes on Use

This instruction must be given in every prosecution for murder in the first degree with malice aforethought. The last paragraph of the instruction should be given only if the alleged intent of the defendant was to kill a person other than the deceased.