Murder - Legal Analysis of Murder

Legal Analysis of Murder

William Blackstone (citing Edward Coke), in his Commentaries on the Laws of England set out the common law definition of murder, which by this definition occurs

when a person, of sound memory and discretion, unlawfully kills any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied.

The elements of common law murder are:

1. Unlawful
2. killing
3. of a human
4. by another human
5. with malice aforethought.

The Unlawful—This distinguishes murder from killings that are done within the boundaries of law, such as an execution, justified self-defense, or the killing of enemy soldiers during a war.

Killing—At common law life ended with cardiopulmonary arrest—the total and permanent cessation of blood circulation and respiration. With advances in medical technology courts have adopted irreversible cessation of all brain function as marking the end of life.

of a human—This element presents the issue of when life begins. At common law a fetus was not a human being. Life began when the fetus passed through the birth canal and took its first breath.

by another human—at early common law suicide was considered murder. The requirement that the person killed be someone other than the perpetrator excluded suicide from the definition of murder.

with malice aforethought—originally malice aforethought carried its everyday meaning—a deliberate and premeditated killing of another motivated by ill will. Murder necessarily required that an appreciable time pass between the formation and execution of the intent to kill. The courts broadened the scope of murder by eliminating the requirement of actual premeditation and deliberation as well as true malice. All that was required for malice aforethought to exist is that the perpetrator act with one of the four states of mind that constitutes "malice."

The four states of mind recognized as constituting "malice" are:

1. Intent to kill,
2. Intent to inflict grievous bodily harm short of death,
3. Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or
4. Intent to commit a dangerous felony (the "felony-murder" doctrine).

Under state of mind (i), intent to kill, the deadly weapon rule applies. Thus, if the defendant intentionally uses a deadly weapon or instrument against the victim, such use authorizes a permissive inference of intent to kill. In other words, "intent follows the bullet." Examples of deadly weapons and instruments include but are not limited to guns, knives, deadly toxins or chemicals or gases and even vehicles when intentionally used to harm a victim.

Under state of mind (iii), an "abandoned and malignant heart", the killing must result from defendant's conduct involving a reckless indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury. An example of this is a 2007 law in California where an individual could be convicted of third-degree murder if he or she kills another person while operating a motor vehicle while being under the influence of alcohol, drugs, or controlled substances.

Under state of mind (iv), the felony-murder doctrine, the felony committed must be an inherently dangerous felony, such as burglary, arson, rape, robbery or kidnapping. Importantly, the underlying felony cannot be a lesser included offense such as assault, otherwise all criminal homicides would be murder as all are felonies.

Many jurisdictions divide murder by degrees. The most common divisions are between first and second degree murder. Generally, second degree murder is common law murder, and first degree is an aggravated form. The aggravating factors of first degree murder are a specific intent to kill, premeditation, and deliberation. In addition, murder committed by acts such as strangulation, poisoning, or lying in wait are also treated as first degree murder.