The eighteenth-century English jurist
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 At common law, murder was normally punishable by death. The elements of common law murder are: • 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. • killing : At common law life ended with
cardiopulmonary arrest • of a human : This element presents the issue of when life begins. At common law, a fetus was not a human being. Life began when the fetus passed through the vagina and took its first breath. 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. 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 the defendant's conduct involving a reckless indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury. In Australian jurisdictions, the unreasonable risk must amount to a foreseen probability of death (or grievous bodily harm in most states), as opposed to possibility. 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 a
lesser included offense such as assault, otherwise all criminal homicides would be murder as all are felonies. In Spanish criminal law,
asesinato (literally 'assassination'): takes place when any of these requirements concur: Treachery (the use of means to avoid risk for the aggressor or to ensure that the crime goes unpunished), price or reward (financial gain) or viciousness (deliberately increasing the pain of the victim). After the last reform of the
Spanish Criminal Code, in force since July 1, 2015, another circumstance that turns homicide (
homicidio) into assassination is the desire to facilitate the commission of another crime or to prevent it from being discovered. 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 a murder defendant guilty of the lesser offense. 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.
Degrees Some jurisdictions divide murder by degrees. The distinction between first- and second-degree murder exists, for example, in
Canadian murder law and
U.S. murder law. Some US states maintain the offense of
capital murder. The most common division is 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 depend on the jurisdiction, but may include a specific intent to kill, premeditation, or deliberation. In some, murders committed by acts such as
strangulation,
poisoning, or
lying in wait are also treated as first-degree murder. A few states in the U.S. further distinguish
third-degree murder, but they differ significantly in which kinds of murders they classify as second-degree versus third-degree. For example, Minnesota and Pennsylvania define third-degree murder as
depraved-heart murder (which in most U.S. jurisdictions is called second-degree), whereas Florida defines third-degree murder as
felony murder (except when the underlying felony is specifically listed in the definition of first-degree murder). Some jurisdictions also distinguish premeditated murder. This is the
crime of wrongfully and intentionally causing the death of another human being (also known as murder) after rationally considering the timing or method of doing so, in order to either increase the likelihood of success, or to evade detection or apprehension. State laws in the United States vary as to definitions of "premeditation". In some states, premeditation may be construed as taking place mere seconds before the murder. Premeditated murder is one of the most serious forms of homicide, and is punished more severely than manslaughter or other types of homicide, often with a
life sentence without the possibility of
parole, or in some countries, the
death penalty. In the U.S.,
federal law () criminalizes premeditated murder, felony murder and second-degree murder committed under situations where federal jurisdiction applies. In Canada, the
criminal code classifies murder as either first- or second-degree. The former type of murder is often called premeditated murder, although premeditation is not the only way murder can be classified as first-degree. In the
Netherlands, the traditional strict distinction between premeditated intentional killing (classed as murder,
moord) and non-premeditated intentional killing (manslaughter,
doodslag) is maintained; when differentiating between murder and manslaughter, the only relevant factor is the existence or not of premeditation (rather than the existence or not of mitigating or aggravated factors). Manslaughter (non-premeditated intentional killing) with aggravating factors is punished more severely, but it is not classified as murder, because murder is an offense which always requires premeditation.
Common law According to Blackstone, English
common law identified murder as a
public wrong. According to common law, murder is considered to be
malum in se, that is, an act which is evil within itself. An act such as murder is wrong or evil by its very nature, and it is the very nature of the act which does not require any specific detailing or definition in the law to consider murder a crime. Some jurisdictions still take a common law view of murder. In such jurisdictions, what is considered to be murder is defined by
precedent case law or previous decisions of the courts of law. However, although the common law is by nature flexible and adaptable, in the interests both of certainty and of securing convictions, most common law jurisdictions have
codified their criminal law and now have statutory definitions of murder.
Exclusions General Although laws vary by country, there are circumstances of exclusion that are common in many legal systems. • The killing of enemy combatants who have not surrendered, when committed by lawful combatants in accordance with lawful orders in war, is generally not considered murder. Illicit killings within a war may constitute murder or homicidal
war crimes; see
Laws of war. •
Self-defense: acting in self-defense or in defense of another person is generally accepted as legal justification for killing a person in situations that would otherwise have been murder. However, a self-defense killing might be considered manslaughter if the killer established control of the situation before the killing took place, such as
imperfect self-defense. In the case of self-defense, it is called a "justifiable homicide". • Unlawful killings without malice or intent are considered manslaughter. • In many common law countries,
provocation is a partial defense to a charge of murder which acts by converting what would otherwise have been murder into manslaughter (this is voluntary manslaughter, which is more severe than involuntary manslaughter). • Accidental killings are considered homicides. Depending on the circumstances, these may or may not be considered criminal offenses; they are often considered manslaughter. • Suicide does not constitute murder in most societies. Assisting a suicide, however, may be considered murder in some circumstances.
Specific to certain countries •
Capital punishment: some countries practice the death penalty. Capital punishment may be ordered by a legitimate court of law as the result of a conviction in a
criminal trial with
due process for a serious crime. All member states of the
Council of Europe are prohibited from using the death penalty. •
Euthanasia, doctor-assisted suicide: the administration of lethal drugs by a doctor to a
terminally ill patient, if the intention is solely to alleviate pain, in many jurisdictions it is seen as a special case (see the doctrine of
double effect and the case of
Dr John Bodkin Adams). • Killing to prevent the theft of one's property may be legal under certain circumstances, depending on the jurisdiction. In 2013, a jury in south Texas acquitted a man who killed a
sex worker who attempted to run away with his money. • Killing an intruder who is found by an owner to be in the owner's home (having entered unlawfully): legal in most US states (see
Castle doctrine). • Killing to prevent specific forms of aggravated rape or
sexual assault – killing of attacker by the potential victim or by witnesses to the scene; legal in parts of the US and in various other countries. • In some countries, the killing for what are considered reasons connected to
family honor, usually involving killing due to sexual, religious or
caste reasons (known as
honor killing), committed frequently by a husband, father or male relative of the victim, is not considered murder; it may not be considered a criminal act or it may be considered a criminal offense other than murder. International law, including the
Istanbul Convention (the first legally binding convention against
domestic violence and
violence against women) prohibits these types of killings (see Article 42 – Unacceptable justifications for crimes, including crimes committed in the name of so-called honor). • In the United States, in most states and in federal jurisdiction, a killing by a police officer is excluded from prosecution if the officer reasonably believes they are being threatened with deadly force by the victim. This may include such actions by the victim as reaching into a glove compartment or pocket for license and registration, if the officer reasonably believes that the victim might be reaching for a gun.
Victim All jurisdictions require that the victim be a natural person; that is, a human being who was still alive before being murdered. In other words, under the law one cannot murder a
corpse, a corporation, a non-human animal, or any other non-human organism such as a plant or bacterium.
California's murder statute,
penal code section 187, expressly mentioned a fetus as being capable of being killed, and was interpreted by the
Supreme Court of California in 1994 as not requiring any proof of the viability of the fetus as a prerequisite to a murder conviction. This holding has two implications. Firstly, a defendant in California can be convicted of murder for killing a fetus which the mother herself could have terminated without committing a crime. This defense has two elements: • That the
defendant had a serious mental illness, disease, or defect • That the defendant's mental condition, at the time of the killing, rendered the perpetrator unable to determine right from wrong, or that what they were doing was wrong Under
New York law, for example: Under the
French Penal Code: Those who successfully argue a defense based on a mental disorder are usually referred to mandatory clinical treatment until they are certified safe to be released back into the community, rather than prison.
Postpartum depression Postpartum depression (also known as post-natal depression) is recognized in some countries as a mitigating factor in cases of
infanticide. According to Susan Friedman, "Two dozen nations have infanticide laws that decrease the penalty for mothers who kill their children of up to one year of age. The United States does not have such a law, but mentally ill mothers may plead not guilty by reason of insanity." In the
law of the Republic of Ireland, infanticide was made a separate crime from murder in 1949, applicable for the mother of a baby under one year old where "the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child". Since independence, death sentences for murder in such cases had always been
commuted; the new act was intended "to eliminate all the terrible ritual of the
black cap and the solemn words of the judge pronouncing sentence of death in those cases ... where it is clear to the Court and to everybody, except perhaps the unfortunate accused, that the sentence will never be carried out." In Russia, murder of a newborn child by the mother has been a separate crime since 1996.
Unintentional For a killing to be considered murder in nine out of fifty states in the US, there normally needs to be an element of intent. A defendant may argue that they took precautions not to kill, that the death could not have been anticipated, or was unavoidable. As a general rule,
manslaughter constitutes
reckless killing, but manslaughter also includes criminally negligent (i.e. grossly negligent) homicide. Unintentional killing that results from an involuntary action generally cannot constitute murder. After examining the evidence, a judge or jury (depending on the jurisdiction) would determine whether the killing was intentional or unintentional.
Diminished capacity In jurisdictions using the Uniform Penal Code, such as California,
diminished capacity may be a defense. For example,
Dan White used this defense to obtain a manslaughter conviction, instead of murder, in the
assassination of Mayor
George Moscone and Supervisor
Harvey Milk. Afterward, California amended its penal code to provide "As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action...."
Aggravating circumstances Murder with specified
aggravating circumstances is often punished more harshly. Depending on the jurisdiction, such circumstances may include: • Premeditation • Poisoning •
Lying in wait •
Murder of a child • Murder committed during
sexual assault • Murder committed during
kidnapping • Multiple murders committed within one criminal transaction or in different transactions as part of one broader scheme • Murder of a police officer, judge, firefighter or witness to a crime • Murder of a pregnant woman • Crime committed for pay or other reward, such as
contract killing • Exceptional brutality or cruelty, such as that employed in
torture murder • The use of excessive or gratuitous violence beyond that which is necessary to kill; overkill • Murder committed by an offender previously convicted of murder • Methods which are dangerous to the public e.g. explosion, arson, shooting in a crowd etc. • Murder for a political cause • Murder committed in order to conceal another crime or facilitate its commission. • Murder committed in order to obtain material gain, for example to obtain an inheritance •
Hate crimes, which occur when a perpetrator targets a victim because of their perceived membership in a certain social group. • Treachery (e.g.
Heimtücke in
German law) In the United States and Canada, these murders are referred to as
first-degree or
aggravated murders. Under
English criminal law,
murder always carries a mandatory
life sentence, but is not classified into degrees. Penalties for murder committed under aggravating circumstances are often higher under English law than the 15-year minimum non-parole period that otherwise serves as a starting point for a murder committed by an adult.
Felony murder rule A legal
doctrine in some common law jurisdictions broadens the crime of murder: when an offender kills in the commission of a dangerous crime, (regardless of intent), he or she is guilty of murder. The felony murder rule is often justified by its supporters as a means of preventing dangerous felonies, but the case of
Ryan Holle shows it can be used very widely. The felony-murder reflects the versari in re illicita: the offender is objectively responsible for the event of the unintentional crime; in fact the figure of the civil law systems corresponding to felony murder is the
preterintentional homicide (art. 222-7 French penal code, art. 584 Italian penal code, art. 227 German penal code etc.). Felony murder contrasts with the principle of guilt, for which in England it was, at least formally, abolished in 1957, in Canada it was quashed by the Supreme Court, while in the USA it continues to survive.
Year-and-a-day rule In some common law jurisdictions, a
defendant accused of murder is not guilty if the victim survives for longer than
one year and one day after the attack. This reflects the likelihood that if the victim dies, other factors will have contributed to the cause of death, breaking the chain of
causation; and also means that the responsible person does not have a charge of murder "hanging over their head indefinitely". Subject to any
statute of limitations, the accused could still be charged with an offense reflecting the seriousness of the initial assault. With advances in modern medicine, most countries have abandoned a fixed time period and test causation on the facts of the case. This is known as "delayed death" and cases where this was applied or was attempted to be applied go back to at least 1966. In England and Wales, the "year-and-a-day rule" was abolished by the
Law Reform (Year and a Day Rule) Act 1996. However, if death occurs three years or more after the original attack then prosecution can take place only with the
attorney-general's approval. In the United States, many jurisdictions have abolished the rule as well. Abolition of the rule has been accomplished by enactment of statutory criminal codes, which displaced the common-law definitions of crimes and corresponding defenses. In 2001 the
Supreme Court of the United States held that retroactive application of a state supreme court decision abolishing the year-and-a-day rule did not violate the
Ex Post Facto Clause of
Article I of the United States Constitution. The potential effect of fully abolishing the rule can be seen in the case of 74-year-old William Barnes, charged with the murder of a Philadelphia police officer Walter T. Barclay Jr., who he had shot nearly 41 years previously. Barnes had served 16 years in prison for attempting to murder Barkley, but when the policeman died on 19 August 2007, this was alleged to be from complications of the wounds suffered from the shooting – and Barnes was charged with his murder. He was acquitted on May 24, 2010. == Contributing factors ==