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. [4]
The elements of common law murder are:
1. Unlawful
2. killing
3. of a human
4. by another human
5. with malice aforethought.[5]
The Unlawful This distinguishes murder from killings that are done within the boundaries of law, such
as capital punishment, justified self-defense, or the killing of enemy combatants by lawful combatants as
well as causing collateral damage to non-combatants during a war.[6]
Killing At common law life ended with cardiopulmonary arrest[5] the total and permanent cessation of
blood circulation and respiration.[5] With advances in medical technology courts have adopted irreversible
cessation of all brain function as marking the end of life. [5]
of a human This element presents the issue of when life begins. At common law, a fetus was not a
human being.[7] Life began when the fetus passed through the vagina and took its first breath.[5]
by another human At early common law, suicide was considered murder.[5] 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 (prior intent) 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:
i.
Intent to kill,
ii.
Intent to inflict grievous bodily harm short of death,
iii.
Reckless indifference to an unjustifiably high risk to human life (sometimes described as an
"abandoned and malignant heart"), or
iv.
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 one or more victims.
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 driving under the influence of
alcohol, drugs, orcontrolled 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 alesser 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.[8]
As with most legal terms, the precise definition of murder varies between jurisdictions and is usually
codified in some form of legislation. Even when the legal distinction between murder and manslaughter is
clear, it is not unknown for a jury to find an defendant to murder guilty of the lesser offence. The jury might
sympathise with the defendant (e.g. in a crime of passion, or in the case of a bullied victim who kills their
tormentor), and the jury may wish to protect the defendant from a sentence of life imprisonment or
execution.
