MUR DE R. In Criminal Law. The wilful killing of any subject whatever, with malice aforethought, whether the person slain shall be an Englishman or a foreigner. Haw kins, Pl. Cr. b. 1, n. 13, s. 3. Russell says, the killing of any person under the king's peace, with malice prepense or aforethought, either express or implied by law. 1 Russell, Crimes, 421 ; 5 Cush. Mass. 304. When a person of sound mind and discretion unlaw fully killeth any reasonable creature in being, and under the king's peace, with malice afore thought, either express or implied. Coke, 3d Inst. 47.
This latter definition, which has been adopted by Blackstone, 4 Comm. 195; Chitty, 2 Crim. Law, 724, and others, has been severely criticized. What, it has been asked, arc sound nzemory and under standing 1 What has soundness of memory to do with the act ? be it ever so imperfect, how does it affect the guilt ? If discretion is necessary, can the crime ever be committed ? for is it not the highest indiscretion in a man to take the life nt' another, and thereby expose his own ? If the person killed be an idiot or a new-horn infant, is he a reasonable creature ? Who is in the king's peace ? What is malice afterthought ? Can there be any malice aforethought ? Livingston, Pen. Law, 186. It is, hovtever, apparent that some of the criticisms are merely verbal, and others are answered by the con struction given in the various eases to the require ments of the definition. See, especially, 5 Cush.
Mass. 304.
2. According to Coke's definition, there must be, ji;r8t, sound mind and memory in the agent. By this is understood there must be a wa:// and legal discretion. Second, an actual killing; but it is not necessary that it should be caused by direct violence : it is suf ficient if the acts done apparently endanger life, and eventually prove fatal. Hawkins, Pl. Cr. b. 1, c. 31, s. 4 ; 1 Hale, Pl. Cr. 431 ; 1 Ashm. Penn. 289 ; 9 Carr. & P. 356 ; 2 Palm. 545. Third, the party killed must have been a reasonable being, alive and in the king's peace. To constitute a birth, so as to make the killing of a child murder, the whole body must be detached from that of the mother ; but if it has come wholly forth, but is still connected by the umbilical cord, such killing will be murder. 2 Bouvier, Inst. n. 1722, note. Fceticide would not be such a killing : he must have been in rerum naturet. Fourth, malice, either express or implied. It is this circumstance which distinguishes mur der from every description of homicide. See