4.1: Homicide

The literal definition of homicide is the killing of one human being by another. There are some types of homicide which are legal. More specifically, when the government executes a prisoner, it is a lawful killing of the person. Additionally, if a homicide is shown to be justifiable or excusable, it is also lawful. More to follow on lawful homicide, in this chapter. The basic difference between lawful and unlawful homicide is intent. Murder, as summarized below, requires malice or evil intent.²¹

Murder

California Penal Code section 187 (a) defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought.^[2]

Murder is a crime that has the elements of criminal act, criminal intent, causation, and harm. In this section, you learn the elements of murder. In upcoming sections, you learn the factors that classify murder as first degree, felony, and second degree.

Murder Act

Most jurisdictions define the criminal act element of murder as conduct that causes the victim’s death (N.Y. Penal Law, 2011). The criminal act could be carried out with a weapon, a vehicle, poison, or the defendant’s bare hand. Like all criminal acts, the conduct must be undertaken voluntarily and cannot be the result of a failure to act unless a duty to act is created by common law or statute.

Murder Intent

It is the criminal intent element that basically separates murder from manslaughter. At common law, the criminal intent element of murder was malice aforethought. In modern times, many states and the federal government retain the malice aforethought criminal intent (Cal. Penal Code, 2011).

An exception to the criminal intent element of murder is felony murder. Most jurisdictions criminalize felony murder, which does not require malice aforethought or the Model Penal Code murder mental states. Felony murder is discussed shortly.

The Meaning of Malice

Malice, is defined by California Penal Code section 188 as the following:

(a) For purposes of Section 187, malice may be express or implied.

(1) Malice is expressed when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature.

(2) Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

(3) Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.

(b) If it is shown that the killing resulted from an intentional act with express or implied malice, as defined in subdivision (a), no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite that awareness is included within the definition of malice.²²

Example of Intent to Kill

Jay decides he wants to kill someone to see what it feels like. Jay drives slowly up to a crosswalk, accelerates, and then runs down an elderly lady who is crossing the street. Jay is acting with the intent to kill, which would be express malice or purposely.

Example of Intent to Cause Serious Bodily Injury

Jay wants to injure Robbie, a track teammate, so that he will be the best runner in the high school track meet. Jay waits for Robbie outside the locker room and when Robbie exits, Jay attacks him and stabs him several times in the knee. Unfortunately, one of Jay’s stabbing wounds is in the carotid artery, and Robbie bleeds to death. Jay is acting with the intent to cause serious bodily injury, which would be implied malice, or knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.

The Meaning of Aforethought

The term aforethought at common law meant that the defendant planned or premeditated the killing. However, this term has lost its significance in modern times and does not modify the malice element in any way. Premeditation is a factor that can elevate murder to first-degree murder, as is discussed shortly.²³

Figure \(\PageIndex{1}\): Forensic Scientist and Police Officer at a Crime Scene.^vii

Degrees of Murder

First and second-degree murder is defined in section 189 as follows:

(a) All murder that is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 287, 288, or 289, or former Section 288a, or murder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.

(b) All other kinds of murders are of the second degree.²⁴

Felony Murder Rule

Felony murder is a criminal homicide that occurs during the commission or attempted commission of a felony. Most states and the federal government include felony murder in their penal codes (18 U.S.C., 2011). However, it has not been universally adopted. Felony Murder Intent

What distinguishes felony murder from murder is the absence of the typical murder intent. The criminal intent element required for felony murder is the intent required for a felony that causes a victim’s death.

Explanation of Felony Murder Intent

When the defendant commits a felony that is inherently dangerous to life, he or she does so knowing that some innocent victim may die. This awareness is similar to implied malice, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. What is difficult to justify is a conviction for felony murder when the felony is not inherently dangerous to life. Thus, most jurisdictions limit the felony murder doctrine to felonies that create a foreseeable risk of violence or death. States that include nonviolent felonies in their felony murder statutes generally grade them as second- or third-degree felony murder (Fla. Stat. Ann., 2010).

Example of Felony Murder Intent

Joaquin, who has just lost his job, decides to burn down his apartment building because he cannot afford to pay the rent. Joaquin carefully soaks his apartment with lighter fluid, exits into the hallway, and throws a lit, lighter-fluid-soaked towel into the apartment. He then runs outside to watch the entire building burn down. Several tenants die of smoke inhalation because of the fire. In jurisdictions that recognize felony murder, Joaquin can probably be charged with and convicted of murder for every one of these deaths.

In this example, Joaquin did not intend to kill the tenants. However, he did most likely have the criminal intent necessary for arson. Therefore, felony murder convictions are appropriate. Note that Joaquin exhibited extreme indifference to whether the tenants in the building lived or died, which could also constitute the criminal intent of implied malice or depraved heart.²⁵

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²¹George Cartwright (2024)

²²California Penal Code (2024)

²³University of Minnesota Libraries Publishing (2015).

²⁴California Penal Code (2024)

²⁵University of Minnesota Libraries Publishing (2015)