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Murder as

law, malice, killing, homicide, aforethought, slayer, qv, suicide and unlawful

MURDER (AS. »torpor, morpur, from mar)), 011G. mord, nen ..11ord, death; connected with Welsh mane, Lith. smertis, Lat. mars, death, Gk. opor6s, brotos, mortal, Slot. nuns, to die). The unlawful killing of a human being with malice aforethought. The term appears to have been limited in early English law to a homicide com mitted in secret, or accompanied by concealment of the holy. During the Norman period. this worth tor secret) slaying of Saxon times be came the man/ram—the homicide of the very worst kind, and was distinguished by Olanville from a mere healiciaium, or open killing. For a considerable time. murdrum signified the fine imposed by the Crown on any hundred in which a man was ;lain, a; well as the killing itself. This fine—originally -Ifi mark-. of xvhich 40 went to the King and ti to the kinfolk of the deceased —could be avoided by the production of the slay er, or by proof t hat t he sla in man was an English man and not of Franco-Norman race. Furnishing such proof Was 1:114)W11 as Englishry. From the time that Englishry was abolished in 1348, murder bears the single meaning of unlawful Inunicide of the worst species, which subjects the slayer to capital punishment.

The next step in the history of murder as a term of English law, according to the best au thorities, "consists in the adoption of the ex pression 'malice aforetlunight,' as the character istic specific distinction of murder as distin guished from other kinds of homicide." This came about from the forms of the special find ings of the jury in prosecutions for homicide. In order to entitle the slayer to a pardon under the Statute of Gloucester (6 Ed. L. e. 9, A.D. 1278), it was necessary for the jury to find that he acted in self-defense and not by felony or of malice aforethought." During the next two cen turies and a half, the modern distinction between willful murder and manslaughter (q.v.) was de veloped. as appears by a statute of 1331 (23 11. V111., c. 1, § 3), which takes away the benefit of clergy (q.v.) in cases of "willful murder of malice prepense." The first element in the crime is unlawfulness, as distinguished from the killing which is justifiable or excusable homicide. (See HomIcIDE and JUSTIFIART.F. HOMICIDE.) Not only must the killing he unlawful, but the person must he a "reasonable creature in being." :\eeordingly, the killing of an unborn child is not murder at eommon law, but is abortion lily.).

The other essential element in murder is the malice aforethought with which the killing is done. This requires. first of all, sanity and discretion on the part of the slayer. An idiot. a lunatic (q.v.), or an infant (q.v.) below the age of discretion cannot commit murder. While malice aforethought is essential to the crime of murder, the law does not require the lapse of any prescribed thne between the formation of the intention to kill and the killing. It is suf

ficient that the murderous intention preeedes and aceompanies the net of homicide. If the will ac companies the act a moment antecedent to the net itself which eauses death, this makes the offense murder as certainly as if a day inter vened Iwtween the willing and the doing. The malice in ease of murder must be actual. or. as it is sometimes said, express, in eontradisl Metion to implied malice. This does not mean. however, that the slayer must actually Ina we intended to kill his victim. nor that he bore toward him a settled and malignant Hence if one shoots at A. and misses him, but kills B, this is mur der, because of the previous felonious intent, which the law transfers from one to the other. So if one lays poison for A. and 13, ac!ainst whom the poisoner had no felonious intent. takes it, and is killed, this is murder. In short, the idea of malice aforethought is not spite or malevolence to the deceased in particular, but evil design in general; not premeditated personal hatred m. revenge toward the person killed, so much as a deliberately unlawful purpose which, if perse vered in, must produce mischief. At the common law the procuring of a person to commit suicide (q.v.) is murder if the suicide is accomplished. So it is said in the books that if two persons to commit suicide, and attempt to carry design into execution, but only one dies, the survivor is guilty of murder if he were pres ent at the commission of the suicide; otherwise he is an accessory before the fact.

The common law knew nothing of of murder. if the homicide was committed unlaw fully and with malice aforethought, the slayer was a murderer, and, upon conviction, liable to capital punishment. This penalty has been thought too severe for some kinds of murder, and a number of our States have divided the offense into two degrees, continuing capital punishment for the first degree, and punishing the second de gree with imprisonment. While these statutes differ in detail, they agree in limiting the defini tion of murder in the first degree to those eases where the killing was done in a willfuLdeliberate, premeditated, or particularly cruel manner, or while engaged in the commission of some heinous felony, such as arson, and in some States rape and burglary. Consult : Bishop, New Criminal Law (Chicago, 1S92) ; Stephen, History of the Criminal Law of England (London, 13R3); Wharton, Criminal Law (Philadelphia, 1896) ; Clark and Alarshall. Law of Crimes (Saint Paul, 1900) ; and authorities referred to under CRIM INAL LAW,