According to both the common law and statutory definitions malice aforethought is an essential element of murder, particularly in the first degree; and death must follow within a year and a day as a result of the injury inflicted.31a The whole of the day on which the hurt was done shall be reckoned the first.32

The period of time within which death must follow is a common law rule, but its origin is not clear, nor does there seem to be any particular reason for it.

In the construction of the statutes defining murder, malice is not restricted to anger, hatred or ill-will, but includes every other intention to kill a human being without just cause or excuse for the act.33

The word malice is not often understood to require general malevolence, or unkindness of heart, or enmity toward a particular individual; but it signifies rather the intent from which flows any unlawful and injurious act committed without legal justification.34

31a Blackstone Com., 197.

32 1 Hawk, P. 0., Ch. 31, Sec. 9.

33 1 Hawk, P. C, 31, Sec. 9; 1 East P. C. 343. 34 1 Bish, New Cr. Law, Sec. 429, Ch. 3.

There is no distinction between express malice and implied malice. The words "express" and "'implied" have reference only to the evidence by which the existence of malice is established. Actual malice is always intended.35

In the language of the statute of Illinois express malice is that deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof. Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.36

The killing must be done with deliberation. For if a man be highly provoked by a great wrong or injury inflicted upon him by another and while in that state kills his adversary, such killing is not murder. Before the slayer can be convicted of murder, sufficient cooling time must intervene, for the passion to subside and reason to interpose. The question of such cooling time is one of law for the court to decide and not for the jury.

But no particular length of time is required. It has never been held that hatred or ill-will toward the person killed need exist for any considerable length of time in order to constitute malice aforethought. If the malicious intention be not formed until the precise time of the killing, that is sufficient to constitute deliberation.37

But slight provocation merely is no excuse or defense to a charge of murder; as, if the deceased was only kicking at the accused.38

25 Darry vs. People, 10 N. Y., 136; United States vs. King, 43 Fed., 302.

26 111. Stat. Chap. 38, 140, Homicide.

27 Hughes, Cr. Law, Secs. 3, 4, 5;

1 McClain, Cr. Law, Sec. 343.

28 Com. vs. Eckerd, 174 Pa. St., 137.