Murder under Common Law was the “the killing of another with malice aforethought.” Malice means the defendant had a malignant heart with the intent to kill; a heart devoid of social duty and fatally bent on mischief. A defendant could be charged with implied malice murder (which is not a separate crime; still murder) if he acted with a malignant heart and the defendant knew there was a high risk of death or grievous bodily injury.

Under modern law, many states have subdivided murder into degrees. For example, first-degree murder is the premeditated killing of another. In second-degree murder, the defendant still has malice but no premeditation. Premeditated has been interpreted to mean planned, deliberate, and willful. How much time is required for premeditation? Courts have differed. (Compare Commonwealth v. Carroll holding that no time is too short for the necessary premeditation to occur; the space of time between the premeditation and the fatal act is immaterial if the killing was in fact intentional, willful, and deliberate; against State v. Guthrie stating that “to allow the State to prove premeditation…by only showing that the intention came into existence for the first time at the time of such killing completely eliminates the distinction between the two degrees of murder;” there must be some appreciable amount of time.)

Some things courts will weigh (although these are not usually given the same weight):

  1. Person of ordinary judgment would know it is reasonably certain to cause serious bodily injury
  2. Done from some ill will/hatred
  3. Indicates indifference/depraved indifference to life

The MPC Section 210.2 states that “criminal homicide constitutes murder when:

(a) it is committed purposely or knowingly; or

(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.”

In section (a), the MPC ask was the murder purposeful or did the defendant do it knowingly? If yes, the defendant is guilty of murder.

In section (b), the MPC asks whether the defendant exhibited extreme indifference to the value of human life. For the defendant to manifest extreme indifference, he must have some conscience awareness.

Section (b) also notes that “recklessness and indifference are presumed if the actor is engaged or is an accomplice to” a felony (whether in the commission of, while attempting to commit, or in flight after committing/attempting). This is essentially the common law felony-murder rule.

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