JurisdictionUnited States

§ 31.04. Murder: Intent to Inflict Grievous Bodily Injury

Malice aforethought is implied if a person intends to cause grievous bodily injury to another, but death results.78 In states that grade murder by degree, this form of malice nearly always constitutes second-degree murder.

The term "grievous bodily injury" (or, equivalently, "great bodily harm," or "serious bodily injury") is often undefined in the murder context, but the term is frequently explained in case law or statutes in relation to other offenses, such as "assault with intent to commit grievous bodily harm," and these definitions typically are carried over to "implied malice" murder prosecutions.

"Grievous bodily injury" is sometimes judicially defined, e.g., "such injury as is grave and not trivial, and gives rise to apprehension of danger to life, health, or limb."79 Some jurisdictions define the term by statute. For example, the District of Columbia defines "serious bodily injury" as bodily injury that "involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of a function of a bodily member, organ or mental faculty."80 For example, a person who experiences a broken rib, a black eye, and a two-and-a-half-inch cut on the back of her head requiring stitches,81 is likely to have experienced serious bodily injury. It follows, therefore, that a person who unjustifiably and inexcusably intends to cause injuries of this level of severity is guilty of murder if the victim unexpectedly dies as a result of the attack.

Serious issues regarding this form of malice rarely arise. If the defendant intentionally used a deadly weapon on the victim, it is likely that the jury will find express malice, i.e., intent to kill, unless the injuries or wounds were directed at a non-vital part of the body, in which case implied malice is easily proven. Also, virtually any time a...

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