Murder is the unlawful killing, with malice aforethought, of another sentient, and generally this premeditated state of mind distinguishes murder from other forms of unlawful homicide (such as manslaughter).
Most societies both present and in antiquity have considered murder a most serious crime worthy of the harshest of punishment, under the justification that commission of murder is highly detrimental to good order within society. On most planets, a person convicted of murder is typically given a long prison sentence, possibly a life sentence where local law permitted, and in under Union Law, the death penalty is imposed for such an act. (See also Union Felony)
The elements of common law murder are:Edit
- of a sentient
- by another sentient
- with malice aforethought
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.
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 sentient
This element presents the issue of when life begins. At common law, a fetus was not a sentient. Life began when the fetus took its first breath.
by another sentient
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 (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 that constituting "malice":
- Intent to kill,
- Intent to inflict grievous bodily harm short of death,
- Reckless indifference to an unjustifiably high risk to sentient life (sometimes described as an "abandoned and malignant heart"), or
- Intent to commit a dangerous felony (the "felony-murder" doctrine).
Under state of mind (1), 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 (3), an "abandoned and malignant heart", the killing must result from defendant's conduct involving a reckless indifference to sentient life and a conscious disregard of an unreasonable risk of death or serious bodily injury. An example of this is a 2007 OTT 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, or controlled substances.
Under state of mind (4), 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.
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 sympathize 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.