Idaho common law and current statutes on murder

Murder has been considered a crime since the beginning of written law. Through the years, common laws regarding murder have been adapted as the needs of society, and state statutes to clarify common law principles have been the result. This paper will examine the history of elements of murder under historical common law, as well as examine current statutes for murder in the state of Idaho. Further, this paper will compare the elements of each, and discuss possible reasons for differences and similarities. Finally, this paper will suggest new changes to current laws that may be needed due to current societal needs.

First, it is important to understand the meaning behind the phrase "common law." In general, the term refers to the system of laws that originated in England, and have been developed based on the decisions of the court system, and on doctrines created from those decisions. Common law does not refer to written law, but rather to customs and usage of legal precedence (American Heritage Dictionary, 2003).

According to the judges in State v. Lankford (116 Idaho 860, 866, 781 P.2d 197, 203, 1989), the development of murder as a common law crime required many years. Originally, the term "murder" as a crime generally referred to the unlawful killing of another human being with an intention of malice and forethought. However, as the judges in the case noted, this definition underwent several changes over time, since the common law definition did not differentiate between first and second degree murder (State v. Lankford, 1989).

The adaptation of common law made it possible to consider various types of murder. These include intent to kill or murder, intent to do serious bodily harm that results in murder, a "depraved heart" murder, and felony murder (State v. Lankford, 1989). However, it is important to note that while this common law definition further defines murder, it still does not explain criteria for second degree forms of the crime.

Common law felonious homicide was further defined later as the killing of a human being of any age or sex without justification or excuse (Blinn, 1950). This was the first differentiation between justifiable homicide and felonious murder. Further, murder and manslaughter were divided through the previous common law requirement for murder, that of malice and forethought (Blinn, 1950). Thus, common law now distinguished three categories of murder, those of felony murder, manslaughter, and justifiable homicide.

The elements of each classification of murder were further defined by common law throughout the years. The elements for a common law conviction of first degree murder included premeditation and deliberation. For a second degree conviction, the elements included the death of an individual with malice, but did not include the premeditation component (Greenhoot, 1912).

Finally, it is important to note that, under common law, the indictment did not require that the class of murder be placed. According to common law principles, a jury convicting of murder would decide if that murder was first, second, or justifiable homicide. This determination would be based on the jury's views of the facts presented within the case (Greenhoot, 1912).

The current statute in Idaho for murder is much more defined than common law. First, murder is defined in IC 18-4001 as the "unlawful killing of a human being, including, but not limited to, a human embryo or fetus, with malice aforethought or the intentional application of torture to a human being, which results in the death of a human being." The statute goes on to define torture as infliction of extreme and prolonged pain or brutality, and to note that any requirement of intent to kill is removed if death by torture occurs (IC 18-4001).

We can see a clear alteration from common law with such a definition. While the base elements of murder are still intact, those of unlawful killing and malice, we also see the addition of unborn children and torture in the state statute. Over the years, court systems have battled over whether murder can be charged if the victim was an unborn fetus. This statute addresses the issue clearly. As a result, anyone convicted of killing a pregnant woman can be charged with not one, but two counts of first or second degree murder.

Similarly, it is clear why Idaho added the torture component to murder definitions. If a person kills another during torture, he or she can be convicted of murder even if the end intent was not death. One can reasonably assume that torture can lead to death, and thus, even without premeditation, one can be convicted.

This concept is also clarified by IC 18-4002, which defines the idea of express or implied malice. The term is intended to imply express malice, a deliberate intention to take the life of another human being, or implied malice, or murder without provocation (IC 18-4002). Implied malice can also be used to explain why torture leading to death does not require express malice. Implied malice can also include the show of "an abandoned or malignant heart" (IC 18-4002). The intention here is to indicate that torture, as defined above, can only be done by those that do not place value on human life, and thus, have an "abandoned" heart.

Further statutes show even more divergence from common law. IC 18-4003 clearly lays out all forms of murder that qualify for first-degree. Remember that, in common law, first degree murder required only premeditation. This statute is very clear, and does not solely include the premeditation portion of common law elements. In IC 18-4003, any murder perpetrated by poison, torture, or lying in wait, or any murder that is deliberate and premeditated is classified as first-degree. However, the statute also includes any murder of a police officer, by a person previously convicted of murder, committed during the commission of another felony, committed while incarcerated, or committed while attempting to escape a penal institution (IC 18-4003).

Here, we see a clear evolution of the requirements for first degree murder. For several offences under the classification, the requirement of forethought or malice is not required. As social needs changed, the statute altered definitions to meet those changes. Common law definitions did not deal with police officers, commission of felonies, or second offenses. The state clearly sought to address those issues not covered by common law that are specific to the needs of current society.

Still further, current statute also defines several instances of murder not covered in common law. Throughout IC 18, Idaho law defines first degree, second degree, manslaughter, justifiable homicide, and excusable homicide. Manslaughter is further broken into voluntary, involuntary, and motor vehicular homicide. Voluntary manslaughter is considered a "heat of the moment" murder, or one done in passion (IC 18-4006). Involuntary manslaughter is considered murder committed by another person acting unlawfully, but not feloniously, or negligently. Motor vehicular manslaughter is only considered if the primary instrument of death is a vehicle, and if the operator of that vehicle was negligent (IC 18-4006). Justifiable homicide is considered when the defendant was acting to protect property, person, or in an attempt to apprehend a criminal (IC 18-4009). Finally, excusable homicide is considered when the events leading to death were accidental (IC 18-4012).

It is clear from the statutes that common law did not cover all possible areas of murder sufficiently. While it did define criminal law, it did not discuss elements of murder that were not premeditated, but showed sufficient levels of negligence that would easily imply premeditation. In other words, if a person is driving under the influence of alcohol, and kills a person while driving a motor vehicle, common law principles would deem the person guilty of second degree murder. However, under Idaho statute, the person could also be found guilty of lesser charges of motor vehicular homicide, or involuntary manslaughter. While the end result seems to be splitting hairs, it is the level of crime that dictates punishment, and classifying murder as a lower crime can help differentiate between malicious murder and murder through negligent behavior.

Over time, it is clear that state statutes have been developed from common law to adapt to current societal needs. While these adaptations have certainly been beneficial, there are more changes that should be considered. One example of such a change would be a further classification for second degree murder. First degree murder has been clearly defined, but there is certainly ambiguity in terms of second degree murder, in that it is classified only in IC 18-4003 as "any other type of murder." Yet this statement is clearly not correct, when we consider the other forms of homicide outlined in IC 18.