Unit 15: Intentional Killing


  • Dressler 480-485 (through 31.04)

  • Guthrie (CP)

  • Midgett (CP)

  • Forrest (CP)

Key Terms: 

  • deadly-weapon rule

  • willful

  • deliberate

  • premeditated

  • express malice

  • implied malice


A person who intentionally kills another human being without justification, excuse, or mitigating circumstances possesses an intent of “express malice” and is guilty of common law murder.

Intent is a subjective element, meaning that a prosecutor must show that the defendant actually possessed intent to kill. It is not enough that a reasonable person would have known that death would result from the defendant’s conduct.

First Degree Murder

Most jurisdictions that grade homicide offenses define first-degree murder as a “willful, deliberate, premeditated killing.”

In this context, “willful” is defined as a specific intent to kill.

The definitions of “deliberate” and “premeditated” are less clear.  Some jurisdictions conflate the two terms, or even conclude that they are superfluous and provide nothing beyond emphasis of “willful.”

In jurisdictions that separately define the three terms, the absence of deliberation or premeditation generally reduces the offense to a second-degree murder.  Jurisdictions that do not treat the three terms distinctly usually do not distinguish between first- and second-degree murders.

Where “deliberate” is not seen as synonymous with “willful,” it refers to a calm and rational calculation and weighing of options. Essentially, deliberation is what makes a murder “cold-blooded” in the ordinary sense of the term.

Premeditation is the process of thinking about an action beforehand. Jurisdictions are not consistent in determining how much premeditation is necessary. At one extreme, some jurisdictions say that no period of time is too short to satisfy premeditation, so long as it was long enough for the killer to be conscious of what he or she is doing. Under this view, the distinction between “premeditated” and “willful” is blurred.  At the other end, some courts require a period of time long enough to allow a “cooling off” period during which the killer can reconsider.

Notice that deliberation is not possible without premeditation.  However, premeditation is possible without deliberation if, for example, the killer is drunk or for some other reason not capable of the kind of rational thought necessary for deliberation.

In short, premeditation refers to the quantity of thought beforehand, where deliberation refers to the quality.

When an accused intends to cause great bodily injury – but not death – and death resulted, courts will generally conclude that the accused possessed “implied malice,” typically graded as second-degree murder. The terms “great bodily injury” or “severe bodily harm” will be defined differently from jurisdiction to jurisdiction, based on statutes or case law – you should pay careful attention to these definitions when you encounter them.

Note: jurisdictions that distinguish between first-degree and second-degree murder often find that the distinction lies (or at least can lie) in whether or not the killer reflected calmly and rationally, as opposed to acted spontaneously. The theory underlying this distinction is that one who rationally plans and executes a killing is more morally blameworthy and dangerous to society than one who kills impulsively or spontaneously. Does this distinction make sense to you? Consider, for example, someone who compulsively stabs and kills an innocent bystander, compared to someone who, after careful deliberation, kills a terminally ill relative out of compassion.

Questions for Review:

Q1. Suppose that Jeff and Larry are competing over a promotion. Larry ultimately receives the promotion. Jeff, upon learning this, becomes so enraged that he pulls out a knife, lunges towards Larry, and stabs him in the stomach. Larry dies as a result of his injuries. Of what crime is Jeff guilty?

Q2. The same facts as question 1 above, except Jeff only intended to scare Larry by lunging forward, and didn’t intend to actually stab him. Same results? Why/why not?

Q3. Same facts as question 1 above, except Jeff only intended to stab Larry in the arm. However, because Larry flinched in reaction, Jeff accidentally stabbed him in the stomach instead. Same results? Why/why not?

Q4. Mary has just broken up with Alice. Alice, upset, goes out drinking with her friends to cheer up. Unfortunately, the process just makes Alice more upset. As the night winds down, Alice decides to take revenge. She goes home to decide on the specifics. About 30 minutes later, Alice grabs her gun, drives to Mary’s house, lets herself in, and shoots Mary. Mary dies. Of what is Alice guilty?