§ 31.02 Criminal Homicide: General Principles

§ 31.02 Criminal Homicide: General Principles

[A] "Murder" and "Manslaughter": Common Law Definitions

A criminal homicide is one committed without justification or excuse. In very early English legal history, "criminal homicide" was a single offense, punishable by death; later, it was divided by statute into "murder" and the lesser non-capital offense of "manslaughter." These two offenses are part of the American common law.

The common law definition of "murder" is "the killing of a human being by another human being with malice aforethought."²⁴ Manslaughter is "an unlawful killing of a human being by another human being without malice aforethought."²⁵ Thus, as Blackstone has put it, "malice aforethought" is the "grand criterion which now distinguishes murder from other killing."²⁶

At common law, there were no degrees of murder or manslaughter. However, for purpose of clarity, judges often distinguished between "voluntary" (really, "intentional") and "involuntary" ("unintentional") manslaughter. These terms have largely persisted to this day. Originally, the punishment for the two forms of manslaughter was the same;²⁷ today, voluntary manslaughter is a statutorily more serious crime than involuntary manslaughter.²⁸

[B] Murder: Definition of "Malice Aforethought"

[1] "Aforethought"

In very early English history, the word "aforethought" probably required that a person think about, or premeditate, the homicide long before the time of the killing.²⁹ It gradually lost this meaning, so that the term "aforethought" is now superfluous in English homicide law.³⁰

The word "aforethought" has always been superfluous to the definition of murder in American law. Therefore, unless a statute modifies the common law by requiring proof of premeditation,³¹ a spur-of-the-moment killing may constitute murder.³²

[2] "Malice"

"Malice" is a legal term of art with little connection to its non-legal meaning. As the term has developed, a person who kills another acts with "malice" if she possesses any one of four culpable states of mind: (1) the intention to kill a human being; (2) the intention to inflict grievous bodily injury on another; (3) so-called "depraved heart" murder; or (4) the intention to commit a felony during the commission or attempted commission of which a death results (so-called "felony-murder"). These four mental states are discussed in detail in subsequent sections of this chapter.

These disparate mental states have one feature in common: In the absence of justification (e.g., self-defense), excuse (e.g., insanity), or mitigating circumstance (e.g., adequate provocation), each mental state manifests the actor's extreme indifference to the value of human life. In the first case—intent-to-kill murder—the malice is said to be "express"; the other forms involve so-called "implied" malice.

[C] Manslaughter: Types of "Unlawful Killings"

Manslaughter is an unlawful killing that does not involve malice aforethought or, as the Commentary to the Model Penal Code puts it, it is a "homicide without malice aforethought on the one hand and without justification or excuse on the other."³³

Three types of unlawful killings traditionally constitute manslaughter, described more fully in subsequent sections of this chapter. First, an intentional killing committed in "sudden heat of passion" as the result of "adequate provocation" is voluntary manslaughter.

Second, an unintentional killing that is the result of "an act, lawful in itself, but [done] in an...