Murder is the unlawful killing of another human without justification or valid excuse and committed with the necessary intent as defined by the law in a specific jurisdiction. ("The unlawful killing of another human being without justification or excuse.") ("The killing of another person without justification or excuse, especially the crime of killing a person with malice aforethought or with recklessness manifesting extreme indifference to the value of human life.") This state of mind may, depending upon the jurisdiction, distinguish murder from other forms of unlawful homicide, such as manslaughter. Manslaughter is killing committed in the absence of malice,This is "malice" in a technical legal sense, not the more usual English sense denoting an emotional state. See malice (law). such as in the case of voluntary manslaughter brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.
Most societies consider murder to be an extremely serious crime, and thus believe that a person convicted of murder should receive harsh punishments for the purposes of retribution, deterrence, rehabilitation, or incapacitation. In most countries, a person convicted of murder generally receives a long-term prison sentence, a life sentence, or capital punishment. Some countries, states, and territories, including the United Kingdom and other countries with English-derived common law, mandate life imprisonment for murder, whether it is subdivided into first-degree murder or otherwise.See, e.g. United States: 18 USC § 1111 (death or life imprisonment for first-degree murder in the federal jurisdiction of the United States), plus numerous other penalties under state lawUnited Kingdom: The Murder (Abolition of Death Penalty) Act 1965 (c. 71) s. 1(1) (providing for life imprisonment for murder)Canada: R.S.C. 1985, c. C-46, s. 235 (providing for life imprisonment for first-degree or second-degree murder in Canada)Australia: Criminal Code, 1995, s. 71.2 (murder of UN personnel), plus numerous other penalties under state lawNew Zealand: Section 102 of the Sentencing Act 2002 (2002 No. 9), providing for the presumption of life imprisonment for murder except where such a sentence would be manifestly unjustIndia: Bharatiya Nyaya Sanhita § 103(1) (death or life imprisonment mandatory for murder) Hong Kong: Offences against the Person Ordinance (Cap. 212), § 2 (providing for the mandatory penalty of life imprisonment for murder, with exceptions for juveniles)the Philippines: Article 248 of the Revised Penal Code.
Etymology The modern English word "murder" descends from the Proto-Indo-European *mŕ̥-trom which meant "killing", a noun derived from *mer- "to die".
Proto-Germanic, in fact, had two nouns derived from this word, later merging into the modern English noun: *murþrą "death, killing, murder" (directly from Proto-Indo-European*mŕ̥-trom), whence Old English morðor "secret or unlawful killing of a person, murder; mortal sin, crime; punishment, torment, misery";"Murder" , in: Online Etymology Dictionary, accessed on 17 July 2020. and *murþrijô "murderer; homicide" (from the verb *murþrijaną "to murder"), giving Old English myrþra "homicide, murder; murderer". There was a third word for "murder" in Proto-Germanic, continuing Proto-Indo-European *mr̥tós "dead" (compare Latin mors), giving Proto-Germanic *murþą "death, killing, murder" and Old English morþ "death, crime, murder" (compare German Mord).
The -d- first attested in Middle English mordre, mourdre, murder, murdre could have been influenced by Old French murdre, itself derived from the Germanic noun via Frankish *murþra (compare Old High German murdreo, murdiro), though the same sound development can be seen with burden (from burthen). The alternative murther (attested up to the 19th century) springs directly from the Old English forms. Middle English mordre is a verb from Anglo-Saxon myrðrian from Proto-Germanic *murþrijaną, or, according to the Oxford English Dictionary, from the noun.
Definition
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 – the total and irreversible cessation of blood circulation and respiration. With advances in medical technology courts have adopted irreversible cessation of all brain function as marking the end of life. through criminal act or omission: Killing can be committed by an act or an omission. of a human: This element presents the issue of when life begins. At common law, a fetus was not a human being.R v Tait 1 QB 290. Life began when the fetus passed through the vagina and took its first breath. by another human: In early common law, suicide was considered murder. The requirement that the person killed be someone other than the perpetrator excluded suicide from the definition of murder. with malice aforethought: Originally malice aforethought carried its everyday meaning – a deliberate and premeditated (prior intent) killing of another motivated by ill will. Murder necessarily required that an appreciable time pass between the formation and execution of the intent to kill. The courts broadened the scope of murder by eliminating the requirement of actual premeditation and deliberation as well as true malice. All that was required for malice aforethought to exist is that the perpetrator act with one of the four states of mind that constitutes "malice".
In contrast with manslaughter, murder requires the mental element known as malice aforethought. Mitigating factors that weigh against a finding of intent to kill, such as "loss of control" or "diminished responsibility", may result in the reduction of a murder charge to voluntary manslaughter.
The four states of mind recognized as constituting "malice" are:Wise, Edward. "Criminal Law" in Introduction to the Law of the United States (Clark and Ansay, eds.), 154 (2002).
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.; but the common law has been modified in NSW: .
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.Murder in the First and Second Degree (14–17) A murder which shall be perpetrated by ... poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing or which shall be committed in the perpetration or attempted perpetration of any arson, rape or sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon, shall be ... murder in the first degree ... and shall be punished by death or life imprisonment ... except that any person ... under 17 years of age at the time of the murder shall be punished with imprisonment ... for life. All other kinds of murder, including that which shall be proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or the preparation of opium ... cause the death of the user, shall be ... murder in the second degree and ... shall be punished as a Class C felony 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 vis-à-vis 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).