Murder and degrees

Black-letter propositions

1. 01

   Premeditated and deliberate killings are commonly first degree by statute; other malicious killings are second degree unless another category applies.

2. 02

   Depraved-heart murder requires extreme recklessness demonstrating indifference to human life.

3. 03

   Felony murder requires a qualifying independent felony and a death during and in furtherance of it, subject to agency, merger, causation, and duration limits.

4. 04

   A felony can continue through immediate flight until temporary safety.

5. 05

   The defendant takes the victim as found, but must legally cause the death.

Use this attack sequence under time

Common wrong turns

• An assaultive felony that causes death often merges.
• Premeditation can be brief but requires actual reflection.
• Foreseeability is important but does not replace the jurisdiction's felony-murder limitations.

Worked example

During an armed robbery, an accomplice's gun accidentally fires and kills a customer.

Practice this topic

Common-law murder

Cornell defines murder as the unlawful killing of another person and says it is a category of homicide, since not all homicide is unlawful. At common law murder was killing another human being with malice aforethought, which covers intent-to-kill murder, grievous-bodily-harm murder in an attack intended to cause grievous bodily harm, felony murder when a death occurs during a felony, and depraved-heart murder such as firing a gun into a crowded room.

A defendant can be liable for murder even if the defendant only intended to wound the victim, if the intent was grievous bodily harm.

Degrees

Cornell says most states distinguish first, second and third degree murder, and some use the Model Penal Code definitions. It describes the Pennsylvania method: first-degree murder includes willful, deliberate and premeditated murder, particularly heinous killings such as poisoning or lying in wait, and felony murder for listed felonies. All other murder is second degree.

Because the precise definition varies by jurisdiction, state the rule your course uses before applying it to the facts.

Cornell's description of depraved-heart murder, such as intentionally firing a gun into a crowded room so that someone dies, shows that intent to kill a specific person is not the only route to murder. It also notes that these historic definitions inform later reforms of American criminal law. When a fact pattern involves a death, list which theory of malice the facts support and then check whether the jurisdiction grades murder by degree.

Frequently asked questions