Concept
Intent to Kill First
Premeditation, deliberation
Intent to Kill First
Premeditation and deliberation are additions to a base mental state, and the base is an intent to kill. A prosecutor who cannot prove that the defendant meant to cause death has nothing for premeditation to attach to, so the first question in any intentional-murder problem is whether the intent exists at all. This section works through that foundation in three steps: what the law counts as an intent to kill, how a jury is allowed to find it when the defendant never announced it, and why the defendant's reasons for killing do not erase it.
Express Malice Defined
A deliberate intent to kill another human being is express malice, the clearest of the mental states that make a killing murder.1 The word intent can mean two different things, so the definition needs unpacking. At common law a person intends a result in either of two situations: when causing the result is the person's conscious object or purpose, or when the person knows the result is virtually certain to occur.2 Each situation is sufficient on its own, and neither requires the other.
The first situation turns on desire, whatever the odds. A shooter who fires at an enemy intending to cause death has the intent to kill even if the aim is shaky or the target is far enough away that the chance of a hit is small.3 Someone who runs at a neighbor with a known weak heart, shouting a false alarm in the hope of provoking a fatal attack, intends to kill although the plan probably will not work.4 The second situation turns on knowledge. A gunman who fires a high-powered rifle at his enemy, who is holding a bystander in front as a shield, may not want the bystander dead, but he knows the bystander is substantially certain to die, and that knowledge supplies the intent to kill the bystander.5 The reason both situations count is that in each the actor has accepted death as part of what the act will accomplish, and one author has put the point by saying there is no basis in principle for separating purposeful from knowing homicide.6
Modern codes often split the two. The Model Penal Code reserves purposely for conscious object and uses knowingly for awareness that death is practically certain, but it classifies both as murder.7 Two further points keep the concept in bounds. First, intent concerns the person killed only through the conduct aimed at someone, so a shooter who aims at one person and misses, killing a second, is guilty of murdering the second.8 Second, intent to kill in the strict sense is narrower than a general wish to hurt: an intent to scare or to wound does not amount to it.9 Finally, today the intent need not have been thought out in advance. An unpremeditated intent to kill is enough for ordinary intent-to-kill murder, which is why premeditation has to be proved separately when a statute grades the crime.10
Deadly Weapon Inference
Proving an intent to kill is a practical problem, because killers seldom state their intent aloud and often kill with no witnesses. The prosecution therefore has to build the intent from the circumstances of the killing, including what the defendant did and said.12 The most common building block is the deadly-weapon inference: when a person intentionally uses a deadly weapon on a vital part of the victim's body, the factfinder may infer an intent to kill.13 The logic is ordinary common sense. A person who carefully aims a loaded gun at someone's chest and fires has chosen a means that nearly always produces death, and the likeliest explanation for that choice is that death was the aim. The same reasoning appears in a case where a robber struck an older victim with a shotgun barrel and then shot him in a basement. The court in State v. Fugate said intent is ordinarily determined from the attendant circumstances, including the instrument used and the nature of the wounds, so the jury was not bound to accept the defendant's claim that the shooting was an accident.14
The word to hold onto is permissive. The jury may draw the inference but need not, and the defendant may still persuade it that no intent to kill existed, as where the defendant shot in the victim's direction meaning only to frighten or to cause a non-fatal wound.15 The deadly-weapon doctrine is therefore a way of proving intent, not a separate category of murder.16 The permissive form also matters constitutionally. An inference passes if a rational connection links the proven fact to the presumed one and the presumed fact is more likely than not to follow, and shooting someone in the heart readily meets that test.17 A mandatory presumption of intent is a different matter. In Sandstrom v. Montana the Supreme Court overturned a murder conviction where the jury was told that the law presumes a person intends the ordinary consequences of voluntary acts, because a reasonable juror could take that instruction as conclusive or as rebuttable only by the defendant's own proof.18 Under either approach the jury may not convict unless it is convinced beyond a reasonable doubt that the defendant in fact intended to kill.19
What counts as a deadly weapon depends on two factors together: what the instrument is, and how it was used. A deadly weapon is any instrument, or in some circumstances any part of the body, used in a manner calculated or likely to cause death or serious bodily injury.20 Loaded guns, daggers, axes, iron bars, baseball bats, bricks, and automobiles have all qualified in the right circumstances, but an iron bar used to tap someone lightly on the head should not support the inference, even if the victim's unusually thin skull made the tap fatal.21 Hands and feet qualify only in appropriate cases, typically repeated blows by a large attacker against a small, frail victim.22 The prosecution must also show that the object used was in fact deadly, which usually needs no explanation for a gun but may need evidence of size and shape for a rock or a cane.23
Two defendants differing in one fact show how the inference operates. A defendant takes careful aim and fires a rifle at the victim's chest from close range, and the jury may infer an intent to kill.24 Change the facts so that the defendant fires a shot that only grazes the victim's leg, meaning to scare off a rival, and the jury credits that account. The inference is not drawn and the intent to kill is missing, because the inference was always a permission and never a command.25
Motive Is Not Intent
Intent concerns the result the defendant aimed at, while motive concerns why the defendant wanted that result. The prosecution must prove a qualifying intent but need not prove any reason for the killing, including ill will toward the victim.27 The converse also holds. A defendant who kills for a sympathetic reason has still acted with intent, so a husband who ends the life of his terminally ill wife in an act of euthanasia has intentionally killed her despite the apparently good motive.28 The law makes no distinction between a killing with a benevolent motive and any other intentional killing when it asks whether intent exists.29
The reason is structural. If a good reason could erase intent, every killer who could tell a sympathetic story would turn the first element of murder into an argument about whose life was worth ending, and the victim's own wishes would decide guilt. The common law closed that door long ago. In Washington v. Glucksberg the Court's historical survey noted the settled principle that a homicide victim's consent is wholly immaterial to the guilt of the person who caused the death, and that prohibitions on assisting suicide never exempted the hopelessly ill.30 Motive is not wholly irrelevant, because special motives can matter to defenses such as self-defense or necessity.31 But that relevance arises at a different stage of the analysis, after intent has been found.
The point connects to the grading question that frames this chapter. A mercy killer has the intent that makes the killing murder, so the only remaining question is the degree, and that depends on whether the evidence shows premeditation and deliberation. A mercy killer who planned the act for weeks has a different record from one who acted on an impulse, and the sympathetic motive does not change which record the jury sees. Where the defendant truly did not mean to cause death, as where a dose was given by mistake, intent is absent, but that is a failure of purpose or knowledge and not a verdict about good reasons.
Express Malice Defined
A deliberate intent to kill another human being is called express malice, and it is the most straightforward of the mental states that turn a killing into murder.33 The word intent is the part that needs unpacking, because in criminal law it covers two different mental states. At common law a person intends a result either when causing it is his conscious object or purpose, or when he knows it is virtually certain to occur.34 Either one is enough by itself, and a prosecutor need prove only one of them. Neither depends on how probable the death looked from the outside.
The first state, conscious purpose, depends on what the defendant wanted and ignores the odds. A shooter who fires at an enemy hoping to cause his death intends to kill even if his hand is unsteady or the target is so far away that a hit is unlikely.35 The law looks at the aim and not the marksmanship, because a defendant who sets out to end a life has the wrongful purpose whether or not his skill matches his hatred.
The second state, knowledge of substantial certainty, depends on what the defendant understood about the consequences of his act. A gunman fires a high-powered rifle at his enemy, who is holding a bystander in front of him as a shield. The gunman may like the bystander and may wish him no harm, but he knows the bystander is almost certain to die, and that knowledge supplies the intent to kill the bystander too.36 The same holds for a man who plants a time bomb on a plane to kill his mother for her insurance, knowing another passenger is aboard. He regrets that second death but intends it, because he knows it will follow from what he has chosen to do.37 Practical certainty is all that is required, so a slight chance that rescue or luck will intervene does not defeat the intent.38 Both states count because in each the actor has accepted death as part of what his act will accomplish, and a killer who knows death is practically certain is as dangerous and as blameworthy as one who craves it.
The line between intent and recklessness shows where express malice stops. A person who plays a prank that carries a small, known risk of fatal fright is aware of a risk, but the risk falls well short of practical certainty, and he does not want the death. Recklessness is conscious disregard of a substantial and unjustifiable risk, an awareness of probability less than substantial certainty.39 That defendant lacks the intent to kill, though some other form of malice may still be available against him. Change one fact, so that he runs at a man with a known weak heart wanting him dead and hoping the shock will do it, and purpose appears; the plan may be improbable, but the intent exists.
Modern codes often divide the common law concept in two. The Model Penal Code reserves purposely for conscious object and uses knowingly for awareness that the result is practically certain, and it treats both as murder when a death results.40 A statute that speaks of intent without defining it normally carries the broader common law meaning, which covers both states.41 One more point connects this section to the chapter's main subject. Today the intent to kill need not have been formed in advance, because an unpremeditated intent is enough for ordinary intent-to-kill murder.42 Express malice is therefore only the base layer. Premeditation and deliberation, taken up in later sections, are what a graded statute adds on top of it.
Deadly Weapon Inference
Because a killer rarely announces an intent to kill and often acts without witnesses, the prosecution usually proves that intent from what the defendant did. The most familiar piece of circumstantial proof is the weapon. At common law, when a defendant intentionally used a deadly weapon directed at a vital part of the victim's body, the factfinder could infer an intent to kill, which supplied the malice aforethought the crime requires.44 The reasoning is ordinary common sense about means and ends. Someone who chooses an instrument that nearly always kills, and points it at the place where a wound is most likely to be fatal, has made a choice whose most natural explanation is that death was the goal. In State v. Fugate, a robber struck an older man twice with a shotgun barrel and then shot him in a basement, and the court held that intent is ordinarily drawn from attendant circumstances, including the instrument used and the nature of the wounds, so the jury did not have to accept the claim of accident.45
What Makes a Weapon Deadly
Whether an object counts as a deadly weapon turns on two things together: what the object is, and how the defendant used it. A deadly weapon is an instrument, or in some circumstances a part of the body, used in a manner calculated or likely to cause death or serious bodily injury.46 The Model Penal Code's definition has the same manner-of-use structure: it reaches any firearm or other device that, in the way it is used or intended to be used, is known to be capable of producing death or serious bodily injury.{{cite:1b9ebb08-b3a8-4a0f-bcfa-fedeadb0a15d)}}
Guns, daggers, axes, iron bars, baseball bats, bricks, and automobiles have all qualified in the right circumstances, and some courts treat a loaded gun as deadly per se because it cannot be used gently.47 Texas takes that approach, but even there the jury may infer intent from a firearm only unless the manner of use makes it reasonably apparent that death or serious injury could not result.48 Hands and feet qualify only in appropriate cases, typically repeated blows by a large attacker against a small, frail victim.49
Two defendants who differ in one fact show how the manner-of-use requirement moves the answer. A skilled marksman fires five shots into the victim's torso at close range, and the jury may infer that he meant to kill. A second defendant taps the victim lightly on the head with an iron bar, and the victim, who has an unusually thin skull, dies. An iron bar is an instrument almost anyone could kill with, but the tap was not a use likely to cause death, so the inference should not be drawn even though the death is real.50 The weapon is the same in both versions of the story, and the manner of use is what changes.
Permissive, Not Mandatory
The inference is a permission to the jury and never a command. The jury may conclude that the defendant intended to kill, but it need not, and the defendant remains free to persuade it that he shot toward the victim meaning only to frighten or to inflict a non-fatal wound.51 For that reason the deadly-weapon doctrine is a way of proving the intent-to-kill form of murder, and not a separate category of murder with no intent requirement.52
The permissive form is also what keeps the inference constitutional. A permissive inference is acceptable when a rational connection links the proven fact to the presumed one and the presumed fact is more likely than not to follow, which a shot to the heart readily satisfies.53 A mandatory presumption fails because it relieves the state of proving intent beyond a reasonable doubt. In Sandstrom v. Montana the jury was told that "the law presumes that a person intends the ordinary consequences of his voluntary acts," and the Supreme Court reversed the conviction because a reasonable juror could have read that as conclusive, or as rebuttable only if the defendant proved the contrary.54 Telling the jury that the presumption could be rebutted did not rescue the instruction in Francis v. Franklin, because the jury could still have understood it as shifting the burden of persuasion to the accused.55 An instruction advising that malice is implied from the use of a deadly weapon has been held to violate the same constitutional standard.56 The safe instruction therefore says the jury may, but need not, find intent, and with or without the inference the jury must be convinced beyond a reasonable doubt that the defendant in fact intended to kill.57
The reason behind this design comes from the structure of the inference. It lets common experience fill the evidentiary gap that a defendant's silence about his own mind leaves, while the burden of proof stays on the state and the decision stays with the jury. Keeping it permissive preserves both. Remember too that an intent to kill proved this way is only the foundation of first-degree murder under a graded statute, and premeditation and deliberation still have to be shown separately.
Motive Is Not Intent
Intent and motive answer different questions about the same killing. Intent asks what result the defendant was aiming at, or knew was practically certain to follow. Motive asks why the defendant wanted that result. The prosecution must prove a qualifying intent, but it does not have to prove any particular reason for the killing, and it does not have to prove ill will toward the victim.59 The reverse holds as well. A husband who ends the life of his terminally ill wife in an act of euthanasia has intentionally killed her, even though his reason looks kind.60
Two versions of one story show which fact decides the question. A daughter has listened for months to her dying father's pleas to be released from his suffering. She carries a revolver into his hospital room and shoots him, meaning to end his life. Her compassion is real, but she had killing as her conscious object, so she acted with intent to kill. Now change one fact: she brings the revolver to show him the weapon she has bought for protection, and it discharges accidentally. Her love for him is exactly the same, yet no intent exists, because she did not aim at his death and did not know it was practically certain. The feeling is constant across the two versions, and only the mental state toward the result changed, which is why feeling cannot be what the element measures.
The reason for the rule lies in how the element is built. If a good reason could erase intent, every killer with a sympathetic story could turn the first element of murder into an argument about whose life was worth ending, and the victim's own wishes would end up deciding guilt. The common law closed that door long ago. The Supreme Court's historical survey in Washington v. Glucksberg recounts the settled principle that a homicide victim's consent is wholly immaterial to the guilt of the person who caused the death, and that prohibitions on assisting suicide never exempted the hopelessly ill.61 Motive is not irrelevant everywhere, because special motives can matter to defenses such as self-defense or necessity.62 That relevance arises after intent has been found, and it does not defeat the intent itself.
The second half of the section's lesson is that the sympathetic motive does not settle the degree of murder either, because premeditation is a separate question about the defendant's process of thought. In Gilbert v. State, a 75-year-old man shot his wife of 51 years, who suffered from osteoporosis and Alzheimer's disease, and he was convicted of premeditated murder. The court said that good faith is not a legal defense to first-degree murder, and it left any softening of the mandatory sentence for those who kill out of love or mercy to the legislature.63 In State v. Forrest, a son shot his gravely ill father four times in a hospital bed with a single-action revolver that had to be cocked before each shot, and he carried the gun to the hospital on a day he was not working. The court held the evidence sufficient to submit premeditation and deliberation to the jury, and it found his own statements most persuasive, including that he had thought about putting his father out of his misery and had promised his father he would not let him suffer.64 The mercy motive in Forrest was therefore part of the proof of reflection, and it did nothing to disprove it.
The same logic means the premeditation formula does not measure how blameworthy the reason was. A person who thought for a long time about ending a loved one's suffering, and who acted from what she saw as the best of motives, has premeditated just as surely as a person who plotted a killing for profit, and both fall within the first-degree category.65 Whether a sympathetic defendant is charged at all, how the grand jury and the petit jury respond, and what sentence follows are matters of discretion rather than of the elements.66 On an exam, treat the analysis as two separate steps. First ask whether the defendant aimed at death or knew it was practically certain, and set the reason aside. Then ask whether the evidence shows actual reflection beforehand, again without crediting or discounting the motive.