Definition Murder

1 definition

1.1 degrees of murder
1.2 common law
1.3 exclusions

1.3.1 general
1.3.2 specific countries


1.4 victim
1.5 mitigating circumstances

1.5.1 insanity
1.5.2 postpartum depression
1.5.3 unintentional
1.5.4 diminished capacity


1.6 aggravating circumstances
1.7 felony murder rule
1.8 year-and-a-day rule

definition

the eighteenth-century english jurist william blackstone (citing edward coke), in commentaries on laws of england set out common law definition of murder, definition occurs

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

the elements of common law murder are:

the unlawful – distinguishes murder killings done within boundaries of law, such capital punishment, justified self-defence, or killing of enemy combatants lawful combatants causing collateral damage non-combatants during war.

killing – @ common law life ended cardiopulmonary arrest – total , irreversible cessation of blood circulation , respiration. advances in medical technology courts have adopted irreversible cessation of brain function marking end of life.

Сriminal act or omission – killing can committed act or omission.

of human – element presents issue of when life begins. @ common law, fetus not human being. life began when fetus passed through vagina , took first breath.

by human – in common law, suicide considered murder. requirement person killed other perpetrator excluded suicide definition of murder.

with malice aforethought – malice aforethought carried everyday meaning – deliberate , premeditated (prior intent) killing of motivated ill will. murder required appreciable time pass between formation , execution of intent kill. courts broadened scope of murder eliminating requirement of actual premeditation , deliberation true malice. required malice aforethought exist perpetrator act 1 of 4 states of mind constitutes malice.

the 4 states of mind recognized constituting malice are:

under state of mind (i), intent kill, deadly weapon rule applies. thus, if defendant intentionally uses deadly weapon or instrument against victim, such use authorizes permissive inference of intent kill. in other words, intent follows bullet. examples of deadly weapons , instruments include not limited guns, knives, deadly toxins or chemicals or gases , vehicles when intentionally used harm 1 or more victims.

under state of mind (iii), abandoned , malignant heart , killing must result defendant s conduct involving reckless indifference human life , conscious disregard of unreasonable risk of death or serious bodily injury. example of 2007 law in california individual convicted of third-degree murder if or kills person while driving under influence of alcohol, drugs, or controlled substances. in australian jurisdictions, unreasonable risk must amount foreseen probability of death (or grievous bodily harm in states), opposed possibility.

under state of mind (iv), felony-murder doctrine, felony committed must inherently dangerous felony, such burglary, arson, rape, robbery or kidnapping. importantly, underlying felony cannot lesser included offense such assault, otherwise criminal homicides murder felonies.

as legal terms, precise definition of murder varies between jurisdictions , codified in form of legislation. when legal distinction between murder , manslaughter clear, not unknown jury find murder defendant guilty of lesser offence. jury might sympathise defendant (e.g. in crime of passion, or in case of bullied victim kills tormentor), , jury may wish protect defendant sentence of life imprisonment or execution.

degrees of murder

many jurisdictions divide murder degrees. distinction between first- , second-degree murder exists, example, in canadian murder law , third-degree murder recognized in u.s. murder law , peruvian murder law.

the common division between first- , second-degree murder. generally, second-degree murder common law murder, , first-degree aggravated form. aggravating factors of first-degree murder depend on jurisdiction, may include specific intent kill, premeditation, or deliberation. in some, murder committed acts such strangulation, poisoning, or lying in wait treated first-degree murder.

some jurisdictions distinguish premeditated murder. crime of wrongfully , intentionally causing death of human being (also known murder) after rationally considering timing or method of doing so, in order either increase likelihood of success, or evade detection or apprehension. state laws in united states vary definitions of premeditation. in states, premeditation may construed taking place mere seconds before murder. premeditated murder 1 of serious forms of homicide, , punished more severely manslaughter or other types of murder, life sentence without possibility of parole, or in countries, death penalty. in u.s, federal law criminalizes premeditated murder, felony murder , second-degree murder @ title 18 of united states code, section 1111. in canada, criminal code classifies murder either 1st- or 2nd-degree. former type of murder called premeditated murder, although premeditation not way murder can classified first-degree.

common law

according blackstone, english common law identified murder public wrong. according common law, murder considered malum in se, act evil within itself. act such murder wrong or evil nature. , nature of act not require specific detailing or definition in law consider murder crime.

some jurisdictions still take common law view of murder. in such jurisdictions, considered murder defined precedent case law or previous decisions of courts of law. however, although common law nature flexible , adaptable, in interests both of certainty , of securing convictions, common law jurisdictions have codified criminal law , have statutory definitions of murder.

exclusions
general

although laws vary country, there circumstances of exclusion common in many legal systems.

killing of enemy combatants have not surrendered lawful combatants, in accordance lawful orders in war, not considered murder; although illicit killings within war may constitute murder or homicidal war crimes. (see laws of war article)
self-defence: acting in self-defence or in defence of person accepted legal justification killing person in situations otherwise have been murder. however, self-defence killing might considered manslaughter if killer established control of situation before killing took place. in case of self-defence called justifiable homicide .
unlawful killings without malice or intent considered manslaughter.
in many common law countries, provocation partial defence charge of murder acts converting otherwise have been murder manslaughter (this voluntary manslaughter, more severe involuntary manslaughter).
accidental killings considered homicides. depending on circumstances, these may or may not considered criminal offenses; considered manslaughter.
suicide not constitute murder in societies. assisting suicide, however, may considered murder in circumstances.

specific countries

capital punishment: countries practice death penalty. capital punishment may ordered legitimate court of law result of conviction in criminal trial due process serious crime. 47 member states of council of europe prohibited using death penalty.
euthanasia, doctor-assisted suicide: administration of lethal drugs doctor terminally ill patient, if intention solely alleviate pain, in many jurisdictions seen special case (see doctrine of double effect , case of dr john bodkin adams).
killing prevent theft of 1 s property may legal, depending on jurisdiction. in 2013, jury in south texas acquitted man killed prostitute attempted run away money.
killing intruder found owner in owner s home (having entered unlawfully): legal in states (see castle doctrine).
killing prevent specific forms of aggravated rape or sexual assault – killing of attacker potential victim or witnesses scene; legal in parts of , in various other countries.
in pakistan, killing of woman or girl in specific circumstances (e.g., when commits adultery , killed husband or other family members, known honor killing) not considered murder.
in united states, in states , in federal jurisdiction, killing police officer excluded prosecution if officer believes being threatened deadly force victim. may include such actions victim reaching glove compartment or pocket license , registration, if officer thinks victim might reaching gun.
space jurisdiction similar of international waters. therefore, murder committed in outer space subject jurisdiction in country owns space craft in killing transpired. in event murder occurred on extraterrestrial planet (e.g. moon), no country can own land of other planet killer bound laws of country in originate. applies iss per agreement signed countries have worked on station astronauts covered extraterratorial jurisdiction.

victim

murder in house, jakub schikaneder.

all jurisdictions require victim natural person; is, human being still alive before being murdered. in other words, under law 1 cannot murder corpse, corporation, non-human animal, or other non-human organism such plant or bacterium.

california s murder statute, penal code section 187, interpreted supreme court of california in 1994 not requiring proof of viability of fetus prerequisite murder conviction. holding has 2 implications. first defendant in california can convicted of murder killing fetus mother herself have terminated without committing crime. second, stated justice stanley mosk in dissent, because women carrying nonviable fetuses may not visibly pregnant, may possible defendant convicted of intentionally murdering person did not know existed.

mitigating circumstances

some countries allow conditions affect balance of mind regarded mitigating circumstances. means person may found guilty of manslaughter on basis of diminished responsibility rather being found guilty of murder, if can proved killer suffering condition affected judgment @ time. depression, post-traumatic stress disorder , medication side-effects examples of conditions may taken account when assessing responsibility.

insanity

mental disorder may apply wide range of disorders including psychosis caused schizophrenia , dementia, , excuse person need undergo stress of trial liability. usually, sociopathy , other personality disorders not legally considered insanity, because of belief result of free in many societies. in jurisdictions, following pre-trial hearing determine extent of disorder, defence of not guilty reason of insanity may used not guilty verdict. defence has 2 elements:

aaron alexis holding shotgun during rampage.

under new york law, example:

§ 40.15 mental disease or defect. in prosecution offense, affirmative defence when defendant engaged in proscribed conduct, lacked criminal responsibility reason of mental disease or defect. such lack of criminal responsibility means @ time of such conduct, result of mental disease or defect, lacked substantial capacity know or appreciate either: 1. nature , consequences of such conduct; or 2. such conduct wrong.

under french penal code:

article 122-1

a person not criminally liable who, when act committed, suffering psychological or neuropsychological disorder destroyed discernment or ability control actions.
a person who, @ time acted, suffering psychological or neuropsychological disorder reduced discernment or impeded ability control actions, remains punishable; however, court shall take account when decides penalty , determines regime.

those argue defence based on mental disorder referred mandatory clinical treatment until certified safe released community, rather prison. criminal defendant presented option of pleading not guilty reason of insanity. thus, finding of insanity results in not-guilty verdict, although defendant placed in state treatment facility or kept years or decades.

postpartum depression

postpartum depression (also known post-natal depression) recognized in countries mitigating factor in cases of infanticide. according dr. susan friedman, 2 dozen nations have infanticide laws decrease penalty mothers kill children of 1 year of age. united states not have such law, mentally ill mothers may plead not guilty reason of insanity. in law of republic of ireland, infanticide made separate crime murder in 1949, applicable mother of baby under 1 year old balance of mind disturbed reason of not having recovered effect of giving birth child or reason of effect of lactation consequent upon birth of child . since independence, death sentences murder in such cases had been commuted; new act intended eliminate terrible ritual of black cap , solemn words of judge pronouncing sentence of death in cases ... clear court , everybody, except perhaps unfortunate accused, sentence never carried out.

unintentional

for killing considered murder in 9 out of fifty states in us, there needs element of intent. defendant may argue or took precautions not kill, death not have been anticipated, or unavoidable. general rule, manslaughter constitutes reckless killing, manslaughter includes criminally negligent (i.e. grossly negligent) homicide. unintentional killing results involuntary action cannot constitute murder. after examining evidence, judge or jury (depending on jurisdiction) determine whether killing voluntary or involuntary.

diminished capacity

in jurisdictions using uniform penal code, such california, diminished capacity may defence. example, dan white used defence obtain manslaughter conviction, instead of murder, in assassination of mayor george moscone , supervisor harvey milk.

aggravating circumstances

murder specified aggravating circumstances punished more harshly. depending on jurisdiction, such circumstances may include:

premeditation
poisoning
murder of child
murder of police officer, judge, firefighter or witness crime
murder of pregnant woman
crime committed pay or other reward, such contract killing
exceptional brutality or cruelty
murder political cause
hate crimes, occur when perpetrator targets victim because of or perceived membership in social group.
treachery (e.g. heimtücke in german law)

in united states , canada, these murders referred first-degree or aggravated murders. murder, under english criminal law, carries mandatory life sentence, not classified degrees. penalties murder committed under aggravating circumstances higher, under english law, 15-year minimum non-parole period otherwise serves starting point murder committed adult.

felony murder rule

a legal doctrine in common law jurisdictions broadens crime of murder: when offender kills in commission of dangerous crime, (regardless of intent), he/she guilty of murder. felony murder rule justified supporters means of deterring dangerous felonies, case of ryan holle shows can used widely.

year-and-a-day rule

in common law jurisdictions, defendant accused of murder not guilty if victim survives longer 1 year , 1 day after attack. reflects likelihood if victim dies, other factors have contributed cause of death, breaking chain of causation; , means responsible person not have charge of murder hanging on head indefinitely . subject statute of limitations, accused still charged offence reflecting seriousness of initial assault.

with advances in modern medicine, countries have abandoned fixed time period , test causation on facts of case. known delayed death , cases applied or attempted applied go @ least 1966.

in england , wales, year-and-a-day rule abolished law reform (year , day rule) act 1996. however, if death occurs 3 years or more after original attack prosecution can take place attorney-general s approval.

in united states, many jurisdictions have abolished rule well. abolition of rule has been accomplished enactment of statutory criminal codes, had effect of displacing common-law definitions of crimes , corresponding defences. in 2001 supreme court of united states held retroactive application of state supreme court decision abolishing year-and-a-day rule did not violate ex post facto clause of article of united states constitution.

the potential effect of abolishing rule can seen in case of 74-year-old william barnes, charged murder of philadelphia police officer walter barkley, d shot 41 years before. barnes had served 16 years in prison attempting murder barkley, when policeman died on august 19, 2007, alleged complications of wounds suffered shooting - , barnes charged murder. acquitted on may 24, 2010.