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The unlawful killing of another human being without justification or excuse.
Murder is perhaps the single most serious criminal offense. Depending on the circumstances surrounding the killing, a person who is convicted of murder may be sentenced to many years in prison, a prison sentence with no possibility of Parole, or death.
The precise definition of murder varies from jurisdiction to jurisdiction. Under the Common Law, or law made by courts, murder was the unlawful killing of a human being with malice aforethought. The term malice aforethought did not necessarily mean that the killer planned or premeditated on the killing, or that he or she felt malice toward the victim. Generally, malice aforethought referred to a level of intent or reck-lessness that separated murder from other killings and warranted stiffer punishment.
The definition of murder has evolved over several centuries. Under most modern statutes in the United States, murder comes in four varieties: (1) intentional murder; (2) a killing that resulted from the intent to do serious bodily injury; (3) a killing that resulted from a depraved heart or extreme recklessness; and (4) murder committed by an Accomplice during the commission of, attempt of, or flight from certain felonies.
Some jurisdictions still use the term malice aforethought to define intentional murder, but many have changed or elaborated on the term in order to describe more clearly a murderous state of mind. California has retained the malice aforethought definition of murder (Cal. Penal Code § 187 [West 1996]). It also maintains a statute that defines the term malice. Under section 188 of the California Penal Code, malice is divided into two types: express and implied. Express malice exists "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." Malice may be implied by a judge or jury "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."
In Commonwealth v. LaCava, 783 N.E.2d 812 (Mass. 2003), the defendant, Thomas N. LaCava, was convicted of the deliberate, premeditated murder of his wife. LaCava admitted to the shooting and the killing, but he claimed that due to his diminished mental capacity, he could not form the requisite malice when he committed the killing, so as to be convicted of first degree murder. The Supreme Judicial Court of Massachusetts found that Massachusetts law permits psychiatric evidence to attack the premeditation aspect of murder. However, the judge's instructions to the jury regarding the definition of murder was sufficient to render the error harmless, according to the court.
Many states use the California definition of implied malice to describe an unintentional killing that is charged as murder because the defendant intended to do serious bodily injury, or acted with extreme recklessness. For example, if an aggressor punches a victim in the nose, intending only to injure the victim's face, the aggressor may be charged with murder if the victim dies from the blow. The infliction of serious bodily injury becomes the equivalent of an intent to kill when the victim dies. Although the aggressor in such a case did not have the express desire to kill the victim, he or she would not be charged with assault, but with murder. To understand why, it is helpful to consider the alternative: When a person dies at the hands of an aggressor, it does not sit well with the public conscience to preclude a murder charge simply because the aggressor intended only to do serious bodily injury.Some murders involving extreme recklessness on the part of the defendant cause extreme public outrage. In People v. Dellinger, 783 P.2d 200 (Cal. 1989), the defendant, Leland Dellinger, was found guilty of the murder of his two-yearold stepdaughter. The primary cause of the child's death was a fractured skull caused by trauma to the head. However, other evidence showed that the child had large quantities of cocaine in her system when she died. Moreover, her mother discovered that the defendant had fed the child wine through a baby bottle. Due to the defendant's "wanton disregard for life," the verdict of murder was proper, according to the California Supreme Court.
A person who unintentionally causes the death of another person also may be charged with murder under the depraved-heart theory. Depraved-heart murder refers to a killing that results from gross negligence. For example, suppose that a man is practicing shooting his gun in his backyard, located in a suburban area. If the man accidentally shoots and kills someone, he can be charged with murder under the depraved-heart theory, if gross Negligence is proven.
In Turner v. State, 796 So. 2d 998 (Miss. 2001), the defendant, Jimmy Ray Turner, was convicted of the murder of his wife. The couple had contemplated Divorce, but had apparently reconciled. After their reconciliation, they went together to the defendant's parents' house to return a borrowed shotgun. As they walked to the parents' house, the defendant, who testified that he did not think the shotgun was loaded, demonstrated to his wife how he carried the gun with his fingers on the trigger and walked with his arms swinging. His wife stopped suddenly, bumping into the defendant. The shotgun fired, killing the wife. Although the defendant was not charged with premeditated murder, he was indicted and convicted of depraved-heart murder due to his gross negligence in handling the shotgun.
Most states also have a felony murder statute. Under the felony murder doctrine, a person who attempts or commits a specified felony may be held responsible for a death caused by an accomplice in the commission of the felony; an attempt to commit the felony; or flight from the felony or attempted felony. For example, if two persons rob a bank and during the Robbery one of them shoots and kills a security guard, the perpetrator who did not pull the trigger nevertheless may be charged with murder.
The felonies that most commonly give rise to a felony murder charge are murder, rape, robbery, Burglary, Kidnapping, and Arson. Many states add to this list. Maine, for example, adds gross sexual assault and escape from lawful custody (Me. Rev. Stat. Ann. tit. 17-A, § 202 [West 1996]). Generally, felony murder liability lies only if the death was a reasonably foreseeable consequence of the felony, a felony attempt, or flight from the crime. For example, courts have held that death is a reasonably foreseeable consequence of armed robbery.
Most states divide the crime of murder into first and second degrees. In such states, any intentional, unlawful killing done without justification or excuse is considered second-degree murder. The offense usually is punished with a long prison term or a prison term for life without the possibility of parole. Second-degree murder can be upgraded to first-degree murder, a more serious offense than second-degree murder, if the murder was accomplished with an aggravating or special circumstance. An aggravating or special circumstance is something that makes the crime especially heinous or somehow worthy of extra punishment.
California lists some 20 different special circumstances that can boost a murder from second to first degree, including murder carried out for financial gain; murder committed with an explosive; murder committed to avoid or prevent a lawful arrest; murder to perfect or attempt an escape from lawful custody; murder of a law enforcement officer, prosecutor, judge, or elected, appointed, or former government official; murder committed in an especially heinous, atrocious, or cruel fashion where the killer lay in wait for, or hid from, the victim; murder where the victim was tortured by the killer; murder where the killer used poison; or murder where the killing occurred during the commission of, aid of, or flight from certain felonies. These felonies include rape, robbery, kidnapping, burglary, arson, train wrecking, sodomy, the performance of a lewd or lascivious act upon a child under age 14, and oral copulation with a child under age 14 (Cal. Penal Code § 190.2 [West 1996]).
If a murder does not qualify by statute for first-degree murder, it is charged as second-degree murder. A second-degree murder may be downgraded to Manslaughter if mitigating factors were involved in the killing, such as adequate provocation by the victim, or the absence of intent or recklessness on the part of the defendant.
Maine has simplified the law of murder. In Maine, a person is guilty of murder if he or she intentionally or knowingly causes the death of another human being, engages in conduct that manifests a depraved indifference to the value of human life and causes death, or intentionally or knowingly causes another human being to commit suicide by the use of force, duress, or deception (Me. Stat. tit. 17-A § 201 ). Maine also has a felony murder statute. It does not divide murder into degrees.
Sentencing for murder varies from state to state, and according to degrees in the states that have them. Second-degree murder usually is punished with more than 20 years in prison. A person convicted of second-degree murder in Minnesota, for example, may be sentenced to prison for not more than 40 years. Some states, such as California, allow a sentence up to life in prison for second-degree murder.
In some states that have a first-degree murder charge, the crime is punished with a life term in prison without the possibility of parole. In other states, first-degree murder is punishable by death. A defendant's criminal history may affect sentencing for a murder conviction. The greater the criminal history, the more time the defendant is likely to serve. The criminal history of a murder defendant may even cause a murder charge to be upgraded from second degree to first degree. In California, for example, a murder defendant who has a prior conviction for murder faces an automatic first-degree murder charge.
The strongest defenses to a murder charge are provocation and Self-Defense. If the defendant acted completely in self-defense, this fact may relieve the defendant of all criminal liability. If it does not relieve the defendant of all liability, self-defense at least may reduce the charge from murder to manslaughter. Provocation rarely results in complete absolution, but it may reduce the defendant's criminal liability. For example, suppose that a family is being tormented by a neighbor for no apparent reason. The neighbor has damaged the family's property, assaulted the children, and killed the family dog. If the father kills the neighbor and is charged with murder, the father may argue that the provocation by the victim was so great that if he is to be found criminally liable at all, he should be found liable for manslaughter, not murder.
Women Murdered on the Job
The workplace can be a dangerous environment, exposing workers to hazards that can cause accidents, disease, and sometimes death. But the workplace also is a place where murders are committed. Statistics indicate that there is a large difference between the number of men and the number of women killed on the job. Fifteen percent of men who die at work are murdered, whereas 35 percent of female workplace deaths are the result of homicides.
It is believed that the high number of female workplace murders is based in part on the kinds of jobs women take in the economy. Many work in retail jobs, clerking at late-night convenience stores where robberies often occur and where security is often lacking. Analysts also believe that male perpetrators select retail stores where they believe that they can easily overpower a female employee.
Other workplace murders of women are committed by former boyfriends and husbands who are upset over a separation. Some psychologists believe that these men associate the woman's job with independence and the breakup of their relationship. Murdering a former wife or lover is a way for a man to reassert his dominance.
Finally, some murders of women appear to be committed out of resentment over the loss of a job at the workplace and the perception that women are to blame for the job loss. Roughly five percent of all the murders committed in the workplace, male and female, are committed by former or current employees.
A defendant's subjective belief that he or she was under attack by a victim at the time of a killing may be a basis for a claim of self-defense. In Henderson v. Texas, 906 S.W.2d 589 (Tex. App. 1995), the defendant, Sherri Henderson, was convicted of the murder of a victim whom she shot outside of a nightclub. The victim had engaged in a fight with the defendant's sister inside the club, and the fight later moved out-side. The defendant carried a gun that she had purchased a few days before, apparently for protection from her estranged husband. The facts in the case were in dispute, but the defendant found her sister bleeding from the head when she went to the parking lot. She claimed that she saw someone reach for a weapon, and she fired into a crowd, hitting and fatally wounding the woman who had fought her sister. The jury apparently believed the prosecution's claim that the defendant had intentionally shot at the victim after seeing her sister on the ground, and Henderson was convicted of murder. However, the Texas appellate court reversed the trial court's conviction, holding that evidence of the defendant's subjective beliefs regarding her attacker's identity and evidence of prior attacks on the defendant by her husband were relevant to her claim for self-defense.
Insanity is another defense to a murder charge. If a defendant was suffering from such a defect of the mind that he or she did not know what he or she was doing, or the defendent did not know that what he or she was doing was wrong, the defendant may be found not guilty by reason of insanity. In some states, the defendant may be found guilty but mentally ill. In either case, the result is the same: The defendant is confined to a mental institution instead of a prison.
The Insanity Defense has many critics, and it especially comes under fire when a defendant commits an atrocious killing. In 2001, the nation was shocked by the story about Andrea Yates, who drowned each of her five young children in a bathtub. The children's ages ranged from six months to seven years old at the time of the killings. Yates was estranged from her husband and contacted him shortly after the killings. She subsequently confessed to the crime but claimed the defense of insanity. Her counsel argued that because she suffered from schizophrenia, which had first surfaced several years earlier, she did not know the difference between right and wrong at the time of the killings. According to testimony, she had considered stabbing her first child shortly after his birth. The insanity defense failed, however, and Yates was convicted and sentenced to life in prison.
The modern law of murder is relatively static, but minor changes are occasionally proposed or implemented. Some legislatures have debated the idea of striking assisted suicide from murder statutes. Some have considered proposals making doctors liable for murder if they perform a third-trimester Abortion. Many have made changes with respect to juveniles. Juveniles accused of murder used to be tried in juvenile courts, but in the 1980s and 1990s, legislatures passed laws to make juvenile murder defendants over the ages of 14 or 15 stand trial as adults. This change is significant because a juvenile defendant convicted in the juvenile justice system might go free upon reaching a certain age, such as 21. A juvenile defendant who is tried in adult court does not have such an opportunity and may be sentenced to prison for many years, or for life without parole. A juvenile may be put to death upon conviction for murder but only if he or she was age 16 or older at the time of the offense (Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702 ).
Mass Murders and Serial Killings
The public is often fascinated, although also horrified, by stories of mass murders and serial killings. This fascination is evidenced by the popularity of such films as Natural Born Killers and Silence of the Lambs. When a mass murder or serial killing occurs, it often receives considerable media attention. Stories are revisited for years following the incidents, as experts and novices alike try to determine the causes of why these tragedies occur and how they can be prevented. Although statistics show that mass murders and serial killings are more common now than they have been in the past, this type of killings is still rather rare.
Criminologists and other experts distinguish between a serial killer and a mass murderer, although the profiles of these perpetrators are often similar. A serial killer is most often a younger, white male, who targets specific strangers near his work or home. This type of killer is typically a sociopath who kills to satisfy delusional personal needs and desires through killing by physical force. Serial killers such as Jack the Ripper, David Berkowitz, Ted Bundy, and John Wayne Gacy are household names. A mass murderer is likewise often a young, white male, who acts deliberately and methodically in carrying out his killings. One of the most celebrated mass murderers was Charles Joseph Whitman, who in 1966 climbed a tower at the University of Texas at Austin and engaged in a 90-minute shooting spree. He shot 44 people, killing 14, before being fatally shot by a police officer. The motivation of either a serial killer or a mass murderer obviously varies by the killer, but experts note that it is often terror, power, revenge, or profit.
The United States and several other countries have been especially horrified by a number of school shootings in the past decade. One of the most horrific of these shootings occurred at Columbine High School in Littleton, Colorado on April 20, 1999. Two teenagers, Dylan Klebold and Eric Harris, went on a shooting rampage throughout the school, killing 12 students and injuring more than 20, before finally killing themselves. Since 1996, more than 25 schools in the United States have suffered from school shootings, as have schools in such countries as Canada, Sweden, Scotland, and Germany. Because the perpetrators of these murders are usually teenagers, experts have investigated these shootings closely, in order to identify potential signs that an unbalanced student might consider resorting to violence.
Fox, James Alan, and Jack Levin. 1998. "Multiple Homicide: Patterns of Serial and Mass Murder." Crime and Justice..
Hobson, Charles L. 1996. "Reforming California's Homicide Law." Pepperdine Law Review 23.
LaFave, Wayne R. 2000. Criminal Law 3d ed. St. Paul, Minn.: West Group.
n. the killing of a human being by a sane person, with intent, malice aforethought (prior intention to kill the particular victim or anyone who gets in the way), and with no legal excuse or authority. In those clear circumstances, this is first degree murder. By statute many states make killings in which there is torture, movement of the person (kidnapping) before the killing, as an incident to another crime (as during a hold-up or rape), and the death of a police officer or prison guard all first degree murders with or without premeditation, and with malice presumed. Second degree murder is such a killing without premeditation, as in the heat of passion or in a sudden quarrel or fight. Malice in second degree murder may be implied from a death due to the reckless lack of concern for the life others (such as firing a gun into a crowd, or bashing someone with any deadly weapon). Depending on the circumstances and state laws, murder in the first or second degree may be chargeable to a person who did not actually kill, but was involved in a crime with a partner who actually did the killing or someone died as the result of the crime. (Example: In a liquor store stick-up in which the clerk shoots back at the hold-up man and kills a bystander, the armed robber can be convicted of at least second degree murder. To be murder the victim must die within a year of the attack. Death of an unborn child who is "quick" (fetus is moving) can be murder, provided there was premeditation, malice, and no legal authority. Thus, abortion is not murder under the law. (Example: Jack Violent shoots his pregnant girlfriend, killing the fetus). Manslaughter, both voluntary and involuntary, lacks the element of malice aforethought. (See: manslaughter, first degree murder, second degree murder, homicide, malice aforethought, premeditation)
MURDER, crim. law. This, one of the most important crimes that can be
committed against individuals, has been variously defined. Hawkins defines
it to be the willful killing of any subject whatever, with malice
aforethought, whether the person slain shall be an Englishman or a
foreigner. B. 1, c. 13, s. 3. Russell says, murder is the killing of any
person under the king's peace, with malice prepense or aforethought, either
express or implied by law. 1 Rus. Cr. 421. And Sir Edward Coke, 3 Inst. 47,
defines or rather describes this offence to be, "when a person of sound
mind and discretion, unlawfully killeth any reasonable creature in being,
and under the king's peace, with malice aforethought either express or
2. This definition, which has been adopted by Blackstone, 4 Com. 195; Chitty, 2 Cr. Law, 724; and others, has been severely and perhaps justly criticised. What, it has been asked, are sound memory and understanding? What has soundness of memory to do with the act; be it ever so imperfect, how does it affect the guilt? If discretion is necessary, can the crime ever be committed, for, is it not the highest indiscretion in a man to take the life of another, and thereby expose his own? If the person killed be an idiot or a new born infant, is he a reasonable creature? Who is in the king's peace? What is malice aforethought? Can there be any malice afterthought? Livingst. Syst. of Pen. Law; 186.
3. According to Coke's definition there must be, 1st. Sound mind and memory in the agent. By this is understood there must be a will, (q.v.) and legal discretion. (q.v.) 2. An actual killing, but it is not necessary that it should be caused by direct violence; it is sufficient if the acts done apparently endanger. life, and eventually fatal. Hawk. b. 1, c. 31, s. 4; 1 Hale, P. C. 431; 1 Ashm. R. 289; 9 Car. & Payne, 356; S. C. 38 E. C. L. R. 152; 2 Palm. 545. 3. The party killed must have been a reasonable being, alive and in the king's peace. To constitute a birth, so as to make the killing of a child murder, the whole body must be detached from that of the mother; but if it has come wholly forth, but is still connected by the umbilical chord, such killing will be murder. 2 Bouv. Inst. n. 1722, note. Foeticide (q.v.) would not be such a killing; he must have been in rerum natura. 4. Malice, either express or implied. It is this circumstance which distinguishes murder from every description of homicide. Vide art. Malice.
4. In some of the states, by legislative enactments, murder has been divided into degrees. In Pennsylvania, the act of April 22, 1794, 3 Smith's Laws, 186, makes "all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find the person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree; but if such person shall be convicted by confession, the court shall proceed by examination of witnesses, to determine the degree of the crime, and give sentence accordingly. Many decisions have been made under this act to which the reader is referred: see Whart. Dig. Criminal Law, h.t.
5. The legislature of Tennessee has adopted the same distinction in the very words of the act of Pennsylvania just cited. Act of 1829, 1 Term. Laws, Dig. 244. Vide 3 Yerg. R. 283; 5 Yerg. R. 340.
6. Virginia has adopted the same distinction. 6 Rand. R. 721. Vide, generally, Bac. Ab. h.t.; 15 Vin. Ab. 500; Com. Dig. Justices, M 1, 2; Dane's Ab. Index, h.t.; Hawk. Index, h.t.; 1 Russ. Cr. b. 3, c. 1; Rosc. Cr. Ev. h.t. Hale, P. C. Index, h.t.; 4 Bl. Com. 195; 2 Swift's Syst. Index, h.t.; 2 Swift's Dig. Index, h.t.; American Digests, h.t.; Wheeler's C. C. Index, h.t.; Stark. Ev. Index, h.t.; Chit. Cr. Law, Index, h.t.; New York Rev. Stat. part 4, c. 1, t. 1 and 2.
MURDER, pleadings. In an indictment for murder, it must be charged that the prisoner "did kill and murder" the deceased, and unless the word murder be introduced into the charge, the indictment will be taken to charge manslaughter only. Foster, 424; Yelv. 205; 1 Chit. Cr. Law, *243, and the authorities and cases there cited.