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IV.

A
B

Homicide: Murder-The killing of a human being by another human being


with malice aforethought.
MPC Mental State: Purposefully or Knowingly
Malice-A person acts with malice if he possesses any of the four states
of mind.
i
The intent to kills (includes transferred intent)
ii
The intent to inflict grievous bodily harm (in some jurisdictions)
iii
An unintended killing that manifests an extreme indifference in to the
value of human life (depraved heart murder)
iv
The felony murder rule (death occurring during the commission of an
inherently dangerous felony
Intent to Kill
i.
Deliberate and Premeditated-Specific intent to kill is 1st
Degree Murder in jurisdictions that grade the offense by degrees if
the homicide was also deliberate and premeditated.
ii.
Willful, Deliberate, and Premeditated-Nearly all states
that grade murder by degrees provide that a willful, deliberate, and
premeditated killing is murder in the first degree.
iii.
Intent to Inflict Grievous Bodily Injury-Malice
aforethought is implied if a person intends to cause grievous bodily
injury to another, but death results. Usually constitutes 2nd degree
murder.
iv.
Extreme Recklessness (Depraved Heart Murder)
v.
Under the MPC a homicide is a murder when the defendant acts
intentionally or with extreme recklessness (depraved heart).
B.
First Degree Murder
i
Premeditation
1 There must be some reflection on the decision to kill. In Watson,
it was held that the defendant, even though he only had a few
seconds to consider his action, had sufficient time to reflect on
killing the police officer.
2 Mental disorder or intoxication may be used to show that a
defendant was incapable of premeditating his action.
ii
Deliberation
Unintended Killing as a Murder
i
Common Law: "Wanton or Reckless Conduct"
1 Involves a degree of risk greater than negligence or gross
negligence.
2 "A high degree of likelihood that substantial harm will result to
another." Welansky
3 It is the willfulness of the act (or omission) and the
dangerousness of the act resulting in death that mark wanton or
reckless conduct, not necessarily a conscious disregard of the
risk
ii
MPC/Mass: "Recklessly"
1 But, in Massachusetts, which defines this type of murder as
involving a high probability of death does not require proof of
a conscious awareness and disregard of that risk, as long as the
reasonable person under the circumstances would have been
aware of the risk.

ii

Intent to Inflict Serious Bodily Damage


1 In Mayes, the killer threw a bottle at his wife who was holding an
oil lamp, causing the oil to go all over her and killing her within
five days. An unintended killing can be murder if the conduct
that results in the death is so dangerous and heartless that it is
the moral equivalent of the intent to kill.
Felony-Murder Rule
i
Substitutes the Mens Rea requirement of the murder for that of the
felony.
1 Rule only applies to 'inherently dangerous' felonies.
ii
All co-felons are equally guilty in the murder.
1 One of the felons must actually commit the murder. The
accidental shooting in Hickman does not suffice under the
Felony-Murder Rule.
2 Starting a shootout that might lead to a police officer to shoot a
third party mistakenly might suffice under the Extreme
Indifference rule.
Limitations to the Felony Murder Rule
i.
Once the felony ends, the murder cannot be tied to it.
1 Punishing a felon two years after his felony for a murder with the
MR tied to that felony would be a status crime.
2 According to Gladman, when the killing occurs in the immediate
flight from the crime it is sufficiently tied to the felony.
ii
According to the Merger Rule, the felony must be independent of the
murder. If the two are one in the same then the Mens Rea may not
be shared.
iii
Causation as a Limitation
1 Proximate Cause. Was the death foreseeable as a result of the
commission of the felony?
2 "But for" inquiry. The death must flow from the felony and not
just the circumstances.
a
The court in Cavitt required only a logical nexus. For
example, if D robs a bank, drives away slowly, and collides
with a car traveling through an intersection at excess speed
causing the death of the driver, D would not be liable for
felony murder because the killing was not the result of the
felony. If he sped out of the parking lot in flight from the
scene, the result would be different. The logical nexus
requirement assures that the commission of the felony
caused the death and not merely a fortuitous act of one of
the felons.