Intent to Kill as Malice

Intent to Kill as Malice

A death caused by the defendant does not by itself decide whether the crime is murder. Justice Frankfurter, dissenting in Leland v. Oregon, put the point this way: “Behind a muscular contraction resulting in another’s death there must be culpability to turn homicide into murder.”¹ At common law that culpability has a name. Murder is the unlawful killing of a human being committed with malice aforethought, and malice is the mental element that lifts an unlawful killing above the other homicides.² As this chapter has already noted, malice is a legal label rather than a description of ill will, and it covers several mental states: an intent to kill, an intent to inflict grievous bodily harm, extreme recklessness showing a depraved and malignant heart, and an intent to commit a felony.³ Only the first of those concerns us here, and the others belong to later readings.

The deliberate intent to kill another human being is called express malice.⁴ The adjective fits because the defendant’s own purpose is the culpable state. The defendant consciously aims at death, so the law need not infer a bad attitude from how dangerous the conduct was, which is how implied malice works.⁵ Statutes use the same vocabulary. California treats malice as express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.⁶ Georgia’s murder statute, quoted in Gregg v. Georgia, uses nearly identical words and adds that the intention must show itself through external circumstances that can be proved.⁷ That addition anticipates the next section, because a defendant’s mind can be reached only through what the defendant did and said.

Intent has a precise meaning in this definition. At common law a person intends a result when causing it is the person’s conscious object, or when the person knows the result is virtually certain to follow.⁸ The first route requires only desire, whatever the odds. A shooter who fires at an enemy wanting the enemy dead intends to kill even if an unsteady hand or a long distance made a hit unlikely.⁹ The second route requires only knowledge. A shooter who fires a high-powered rifle at an enemy holding a bystander in front as a shield may be fond of the bystander and may wish for no such death, yet the death is substantially certain, so the shooter intends to kill the bystander as well.¹⁰ Modern codes often split these two routes into purpose and knowledge but grade both as murder, a treatment that returns near the end of this chapter.¹¹ In the ordinary case nothing else about the crime is in doubt. When someone aims a gun at the heart of a healthy person and the bullet pierces the heart, the death is exactly the result intended, and the only contestable question is mental.¹²

Intent asks whether the defendant meant to bring about death. The reason the defendant wanted that result is motive, and motive does not enter the malice inquiry. A defendant needs a qualifying mental state but no reason to kill and no ill will toward the victim.¹³ The rule therefore cuts in both directions: spite is unnecessary, and kindness is no answer. Most states would treat a man who kills his dying, beloved wife at her request as a murderer, and the victim’s consent leaves the killer’s guilt untouched.¹⁴ The reason runs through the structure of the doctrine. An intentional killing is malicious unless it is justified, excused, or mitigated, so the law already has defined doctrines for weighing a defendant’s circumstances.¹⁵ If a sympathetic reason could erase intent itself, every such case would send the factfinder into an open-ended judgment about whether the reason was good enough, and that judgment would bypass the bounded rules those doctrines supply. Students lose this issue when they treat a sympathetic motive as though it negated the intent to kill.

The mental state has to concern death itself, and carelessness does not supply it.

What moved the answer between the two scenes is the defendant’s mental relationship to the death: the daughter wanted it, and the driver neither wanted nor expected it. The victim’s fate, the weapon, and the defendant’s attitude toward the victim played no part.

Everything the later sections add rests on this baseline. Once a defendant is shown to have intended the death and no justification or mitigation applies, malice exists and the killing is murder. The common law gradually dropped any requirement that the intent be thought out beforehand, so an unpremeditated intent to kill is enough for murder.¹⁶ The word deliberate in the definition of express malice therefore means only that the intention is consciously held. Premeditation and deliberation matter only where a statute divides murder into degrees, and there they work as an added layer. In most such states, intent-to-kill murder reaches first degree only when premeditation and deliberation accompany the intent.¹⁷ The jury in Leland v. Oregon, for example, was told that a purposeful and malicious killing without deliberation and premeditation was second-degree murder, while a purposeful killing with deliberate and premeditated malice was first degree.¹⁸ Because defendants rarely announce what they intend, the next question is how the prosecution proves intent to kill when the defendant has said nothing.