The common law definition of murder is the unlawful killing of another human being with malice aforethought. Malice aforethought is the term of art that is sometimes colloquially referred to as "premeditation." Please note, however, that while the term "premeditation" implies a preconceived plan to commit murder, malice aforethought is broader than that. It is true that malice aforethought is defined as the intent to kill. However, the intent to kill can be actual, as in situations where the defendant consciously wanted to cause the death of the other person, or it can be implied, as in situations where the defendant intended to cause the victim great bodily harm or where the defendant acted with such blatant disregard for the safety of others that the resulting death of the victim can be considered to be inflicted with malice aforethought. See People v. Morrin, 187 N.W.2d 434 (Mich. 1971).
As we mentioned before, malice aforethought is a term of art that is defined as the actual or implied intent to kill. In fact, malice aforethought encompasses four different mental states that the defendant must have at the time of the killing.
The first state of mind encompassed by malice aforethought is the intent to cause death. That is to say, if the defendant intended to cause the victim’s death when he committed the murderous act, then the killing is with malice aforethought and is considered murder. For example:
Will shoots Jack in the head with the intent of killing him. This is a very basic example of the intent to kill. In this case, Will had the intent to kill Jack when he committed the killing. Therefore, his action was with malice aforethought and is considered murder.
The second mental state encompassed by malice aforethought is the intent to inflict great bodily injury. If the defendant intended to inflict severe injuries to the victim and, as a result of these injuries, the victim dies, the death is considered to have been inflicted with malice aforethought even if the defendant did not consciously want to cause the victim’s death. See People v. Geiger, 159 N.W.2d 383 (Mich. 1968). For example:
Will and Jack are two competitive bowlers. One night they decide to wager $5,000 on a game of bowling. Jack beats Will and Will is so disgusted that he storms out of the bowling alley and refuses to pay Jack. Angry that he has not been paid, Jack jumps out in front of Will one evening as Will is walking from his office to his car and punches Will in the face. Will proceeds to his car and pulls a tire iron out of the trunk. He then returns and begins to beat Jack with it. Will has no intention of killing Jack, but he has every intention of seriously hurting Jack and teaching him a lesson about sucker punching people. Unfortunately, Will is too enthusiastic a teacher and, when he is finished with Jack, Jack has a fractured skull, several broken ribs, a broken jaw and extensive internal injuries. Jack dies of these injuries a few days later. In this situation, because Will intended to cause serious bodily injuries to Jack, Will will be considered to have caused Jack’s death with malice aforethought even though Will never consciously wanted to kill Jack.
The third mental state encompassed by malice aforethought is the intent to commit a felony. If the defendant was in the process of either committing, or fleeing from the commission of a felony when he committed a homicidal act, he is considered to have caused the death with malice aforethought. This concept is sometimes known as the "felony-murder rule," and we will discuss it in more detail later in this chapter.
The fourth state of mind encompassed by malice aforethought is where the defendant has acted with a "depraved indifference" to human life. This is a situation in which the defendant commits an act even though he knows his act runs an unusually high risk of causing death or serious bodily harm to someone else. If the risk of death or bodily harm is great enough, ignoring it demonstrates a depraved indifference to human life and the resulting death is considered to have been committed with malice aforethought. See Commonwealth v. Malone, 47 A.2d 445 (Pa. 1946).
Please note that the courts use a subjective test in determining the defendant’s awareness of the risk that his actions contain. In other words, if a defendant is on trial for a depraved indifference murder, he will be convicted only if he subjectively was aware of the unusually high risk of his actions. If he was not aware of those risks, he cannot be convicted of murder no matter how unreasonable his lack of awareness is.
Please also note that there are two important differences between depraved indifference murder and homicide brought about by recklessness or negligence (which are not considered murder, but are considered lesser forms of homicide). First, the degree of risk required for a depraved indifference murder is much higher than the degree of risk required for a reckless or negligent homicide. Second, the defendant can only be convicted of a depraved indifference murder if he was aware of the unusually high risk of his action, whereas with reckless or negligent homicide, he can be convicted even if he was unaware of the risks involved in his behavior.
Modern statutes have taken the common law definitions of murder and divided them into first degree, second degree and capital murder. You will notice as we discuss the different degrees of murder that the common law definitions of murder have essentially become the modern day definitions of second degree murder. First degree murder and capital murder are strictly creations of modern statutes and they have no common law equivalents. It also should be kept in mind that states vary widely with regard to their definitions of the different levels of murder. Some states have a broad definition of first degree murder, while some states actually remove one or more of the above mental states from the definition of murder entirely. The discussion that follows is based on the general trends of murder definitions in the United States today.
First Degree Murder
First degree murder is a classification that encompasses four different homicides.
The first is premeditated killings where the defendant formed the intent to kill through a process of reasoning or deliberation (as opposed to a homicide committed on a sudden impulse which is not first degree murder). Please note that premeditation does not require any specific amount of time. In other words, the process of deliberation or reasoning that the defendant uses in deciding to commit the homicide does not have to take very long. In fact, the time between forming the intent to kill and the actual homicidal act can be almost instantaneous. For example:
Pedro is walking home from baseball practice when Nomar jumps out from behind a car and sucker punches him. Pedro picks himself up off the ground and grabs the baseball bat that he has been holding. As Pedro raises the bat above his head, he decides that he is going to kill Nomar for punching him. No sooner has Pedro decided this than he swings the bat, hits Nomar in the back of the head and kills him instantly. In this case, Pedro has committed first degree murder. Although Pedro formed the intent to kill an instant before he actually killed Nomar, the length of time between the formation of intent and the act of homicide is enough for Pedro to form a premeditation to commit murder. So long as the intent to kill was formed before the homicidal act, the killing can be first degree murder. See State v. Watson, 449 S.E.2d 694 (N.C. 1994).
The problem with classifying as first degree murder a "homicide that was committed immediately after the intent to kill was formed" is that it blurs the lines between actual premeditation and a sudden impulse killing. That being the case, there are jurisdictions that require the prosecution to prove that the defendant actually calmly considered the question of whether or not to kill the victim before he actually committed the murder. See People v. Anderson, 70 Cal. 2d 15 (1968).
The second type of homicide that is encompassed under first degree murder is intentional homicide committed during the commission of a certain class of violent felonies. This is known as the felony murder rule, and we will examine it more deeply later in this chapter. For now, suffice it to say that the type of felony for which first degree murder applies is any one of the violent "BRAKES" felonies which are burglary, robbery, arson, kidnapping, escape and sex crimes (which include both sexual abuse and rape).
The third type of homicide encompassed by first degree murder is homicide committed by poison, by explosives, or after lying in wait for the victim. Although not all jurisdictions consider these homicides first degree murder, most jurisdictions do. However, even in the jurisdictions that do not consider these homicides first degree murder, the fact that the defendant poisoned his victim, killed his victim through an explosion or actually waited in hiding for the victim to show up is usually very strong evidence of premeditation and would qualify as first degree murder in any case.
The fourth homicide encompassed by first degree murder is killing by torture. See State v. Brock, 416 P.2d 601 (Ariz. 1966).
Second Degree Murder
Second degree murder is simply any killing committed with malice aforethought that is not specifically designated as first degree murder, including any killing committed while committing, or fleeing from the commission of a felony that is not on the list of felonies for which first degree murder would attach. As discussed before, the definition of second degree murder is essentially the same as the common law definition of murder. See People v. Philips, 64 Cal. 2d 574 (1966).
Finally, capital murder is defined as first degree murder plus any one of a number of different aggravating factors. What those aggravating factors are varies from state to state but some of the more standard ones are the killing of a police officer in the course of his duty, the killing of a judge or of a witness in a trial with the intent to influence judicial proceedings, multiple killings and murders for hire. Please note that if a defendant is convicted of capital murder, he can be given the death penalty. Of course, some states do not have the death penalty, and so there is no such thing as capital murder in those states.
Any killing, whether accidental or intentional, that a defendant commits, either while committing a certain class of felonies or fleeing from the commission of a certain class of felonies, is classified as murder. Please note that if the killing is committed during the commission of, or fleeing from the commission of the felony, the prosecution does not have to prove that the defendant had any intent to commit the killing. Rather, the intent required for the felony will be considered as the intent for the murder as well. Therefore, a killing committed during the commission of, or in flight from, the commission of a felony will be considered murder even if the killing was done accidentally.
In situations where there are several people involved in the predicate (underlying) felony, all of the people involved will be guilty of felony murder even if only one of the people involved in the predicate felony actually participated in the killing. See People v. Friedman, 205 N.Y. 161 (1912). For example:
Peter, Bruce and Clark put together a plan to rob the First National Bank of Gotham City. The robbery itself goes well. However, upon fleeing from the bank, Peter is confronted by a security guard. Peter kills the guard and the three robbers make their escape. In this situation, even though it was Peter who actually committed the homicidal act, Clark and Bruce can be found guilty of felony murder along with Peter.
Further, felony murder will also attach if one of the felons themselves is killed. In situations like this, the surviving felons can be found guilty of felony murder. For example:
Peter, Bruce and Clark put together a plan to rob the First National Bank of Gotham City. During the robbery, a security guard shoots and kills Peter. In this situation Bruce and Clark can be found guilty of felony murder for Peter’s death even though Peter was one of the co-felons. See State v. Hoang, 755 P.2d 7 (Kan. 1988).
Because of the harsh nature of the felony-murder rule, several limitations have been placed on it by various jurisdictions.
First, some jurisdictions will allow a conviction for felony murder only if the death of the victim was a foreseeable result of the felony. See State v. Noren 371 N.W.2d 381 (Wis. 1985). Please note, however, that where this foreseeability requirement is in place, the courts are usually very liberal in defining what is foreseeable. For example:
Peter, Bruce and Clark put together a plan to rob the First National Bank of Gotham City. The robbery goes according to plan. However, as they are making a break from the bank, one security guard gives chase. Peter, Clark and Bruce run across a busy street to get to their getaway car, and the security guard follows them. Unfortunately, the security guard does not look to see if there is any oncoming traffic before he runs into the street and he ends up running on front of a city bus which hits and kills him. In this case, the security guard’s death will result in murder convictions for Bruce, Peter and Clark because, even though the security guard was somewhat negligent in running across a busy street without looking to see if there was any oncoming traffic, it was foreseeable that he would chase the three felons during their flight from the bank, and it was foreseeable that something might happen to him during the chase. Thus, the guard's death can be considered foreseeable and the felony murder rule can be applied.
Second, the predicate felony that resulted in the death must be dangerous. As we mentioned earlier, the felonies that are usually considered dangerous enough so that felony murder will attach are the BRAKES felonies which include burglary, robbery, arson, kidnapping, escape and sex crimes. Where a defendant commits a felony that is not generally dangerous (eg. fraud) and, somehow, a death resulted from this felony, felony murder will not attach. See People v. Washington, 62 Cal. 2d 777 (1965).
Further, most courts will only apply the felony murder rule if the predicate felony is independent of the killing. If, however, the predicate felony merges into the killing (ieg. assault or battery), the felony murder rule will not apply. For example, if a defendant commits a robbery or a burglary or a rape and someone dies as a result of the crime, the defendant can be tried for both the predicate felony and the murder because the felony and the killing are independent of each other. The independence between the killing and these crimes stems from the fact that a victim will not just drop dead because his or her house has been robbed. He or she may be killed during the course of the robbery but the act of robbery itself is not fatal. Therefore, these crimes are independent of each other and, if the victim dies as a result of a robbery or a burglary, felony murder will attach. However, in situations where the defendant has committed an assault or battery, which can result in the victim’s death, these crimes are not independent of each other. Therefore, if the defendant commits battery, and the victim dies as a result of the battery, the battery is swallowed up by the murder charge so that the defendant will only be charged with murder and not with the battery and the murder. In cases where the felony and the killing are not independent of each other, felony murder will not apply.
The reason this distinction is important is that felony murder is often considered first degree murder. However, more often than not, a murder charge stemming from an assault or battery would be, at the most, a second degree murder charge and, very often, there are mitigating circumstances involved in the assault that would take the murder and reduce it even further to a charge of voluntary manslaughter. If the felony murder rule were applied in these situations, a death that would ordinarily bring a charge of voluntary or even involuntary manslaughter would automatically be increased to a first degree murder charge. Because of the inherent unfairness that would result from this kind of situation, felony murder does not apply.
Problems arise when a death is not caused either directly by the felon or by someone acting on behalf of the felon. For example:
1) Peter, Bruce and Clark put together a plan to rob the First National Bank of Gotham City. During the robbery they are confronted by a security guard who draws his weapon and fires a shot at Peter. Unfortunately the security guard misses Peter and ends up killing an innocent bystander.
2) Peter, Bruce and Clark put together a plan to rob the First National Bank of Gotham City. During the robbery they are confronted by a customer who begins fighting with Peter. The customer wrestles Peter’s gun away from him and fires a shot at Peter. Unfortunately the customer misses Peter and ends up killing an innocent bystander.
The issue in this situation is whether or not the security guard’s accidental killing of the bystander can result in a felony murder charge against Peter, Bruce and Clark. There is a split in authority where these issues are involved. Some jurisdictions will only apply the felony murder rule if the death was caused by the felon himself or by someone acting as the felon’s agent. This is known as the "agency rule." See State v. Canola, 374 A.2d 20 (N.J. 1977). Thus, in a situation where a security guard or a resisting victim accidentally kills a bystander, felony murder will not apply. Therefore, in our above example, since the security guard and the victim were not agents of Bruce, Clark and Peter, the accidental death of the bystander that they caused will not result in a felony murder charge against Bruce, Clark or Peter.
However, some jurisdictions do attach felony murder liability in these situations because, even though the deaths were not caused directly by the felons, the deaths were the result of the commission of the felony. "But for" the felons committing the felony, these deaths would not have occurred. Please note that the leading case law establishing this opinion, Commonwealth v. Almeida 68 A.2d 595 (Pa. 1949), has been overruled so that, as a general principle, felons will not be charged with felony murder if they or their agents do not cause the death.
Finally, there is a leading line of cases that will not attach felony murder liability if one of the killings is committed by someone other than one of the co-felons and the victim is one the co-felons. See Commonwealth v. Redline, 137 A.2d 472 (Pa. 1958).
As we said before, felony murder will attach if someone is killed as the result of the commission of a felony or in immediate flight from the felony. In these situations, immediate flight is considered the flight from the felony to a place of temporary safety. Once the felons reach a place of temporary safety, the felony is considered completed and any death that they cause after that is not considered felony murder. See People v. Lopez, 6 Cal. 3d 45. For example:
1) Peter, Bruce and Clark put together a plan to rob the First National Bank of Gotham City. The plan calls for them to rob the bank, steal a getaway car and drive to a safe house, remain in the safe house until nightfall, then take Peter’s car, which will be parked at the safe house, and drive across the border. Peter, Bruce and Clark successfully rob the bank and steal the getaway car but, on the way to the safe house, Peter, who is driving, loses control of the car and veers into oncoming traffic where he crashes head on into a car full of kids going to a baseball game. Two of the kids in the other car are killed. In this situation, the deaths of the two kids will be considered felony murder because the deaths occurred when Peter, Bruce and Clark were in immediate flight from the robbery.
2) Peter, Bruce and Clark put together a plan to rob the First National Bank of Gotham City. The plan calls for them to rob the bank, steal a getaway car and drive to a safe house, remain in the safe house until nightfall, then take Peter’s car, which will be parked at the safe house, and drive across the border. Peter, Bruce and Clark successfully carry out the burglary, steal the getaway car and arrive at their safe house. They stay at the safe house until nightfall at which point they load up Peter’s car with the money they have stolen and begin to make their way toward the border. However, on their way, Peter, who is driving, loses control of the car, veers into oncoming traffic, and crashes into a car full of kids heading to a baseball game. Two of the kids are killed. In this situation, the kids’ deaths will not be considered felony murder because they did not occur when Peter, Bruce and Clark were in immediate flight from the robbery. In this case, the felony had ended when they already reached their safe house. Here although reaching the border was the next phase in their plan, it is not considered part of the felony for felony murder purposes. Therefore, while Peter, Bruce and Clark can be charged in the deaths of the children, they will not be charged with first degree murder under the felony murder rule.