Criminal Law.  The unlawful killing of a human being with malice aforethought

Elements (Common Law):

  • The Act (actus reus)
    • Can be voluntary act, involuntary act (e.g., case where defendant is aware of his loss of control — such as an epileptic driving a car), or an omission to act when there is a duty to act.
  • The Intent (mens rea)
    • The intent for murder falls into following categories:
      1. intent to kill
      2. intent to cause serious bodily harm
      3. depraved heart murder
      4. felony murder
  • Living Person
    • The act must actually and proximately cause the death of another living person.
  • Actor
    • The death must be caused by a person other than the victim.  So, for instance, a suicide does not constitute “murder” because the death must be caused by another.
  • Causation
    • The defendant’s actions must be both the actual cause and legal cause of the victim’s death.
    • Cause-in-Fact:  For a defendant to be guilty of murder, the factfinder must find that the victim’s death would not have occurred but for the defendant’s actions.
    • Proximate Causation: Where the victim’s death was a natural and probably consequence of the defendant’s actions, the defendant may be guilty of murder even where he did not foresee the exact chain of events that resulted in the victim’s death.

Reference Desk:

Model Penal Code § 210.2

(1) Except as provided in 210.3(1)(b), 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.  Such recklessness and indifference are presumed if the actor is engaged in or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.

(2) Murder is a felony of the first degree.


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