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Malice Aforethought: The state of mind necessary for common law murder, including the intent to kill, the intent to commit serious bodily injury, the intent to commit a felony and the exhibition of a depraved indifference to human life. Malice aforethought is a different mental state than premeditation or deliberation, which are elements specifically of first-degree murder.Today, malice aforethought is the mental element (or mens rea) required to prove murder in the first degree in federal law and in some states. Malice aforethought is the conscious, premeditated intent to kill another human. Malice aforethought is an integral element of murder charges, and determines the severity of the homicide. These elements are: First, the death of a human; Second, the death was unlawful; "Malice aforethought" means a deliberate intention to take away the life of a human being. The court has a sua sponte duty to instruct on the first two elements of the crime. An exception to the criminal intent element of murder is felony murder. Criminal law outline (focus on the intent) homicide malice aforethought (the element for murder) murder is the unlawful killing of human being with malice.