This paper traces the development of murder as a legal concept from its origins in English common law through its codification in Idaho state statutes. Beginning with the common law distinction between first and second degree murder, malice aforethought, and felonious homicide, the paper systematically compares those historical elements to Idaho Code sections 18-4001 through 18-4012. It identifies significant expansions in Idaho law, including protections for unborn children, torture-based murder, and situational first-degree classifications. The paper concludes by proposing several statutory reforms to address persistent ambiguities in the definitions of second-degree murder, malice aforethought, and the legally imprecise phrase "abandoned and malignant heart."
Murder has been considered a crime since the beginning of written law. Through the years, common law principles regarding murder have been adapted to meet the needs of society, and state statutes have been enacted to clarify those principles. This paper examines the history of the elements of murder under historical common law, as well as the current statutes for murder in the state of Idaho. It compares the elements of each, discusses possible reasons for their differences and similarities, and suggests changes to current laws that may be needed to address contemporary societal needs.
First, it is important to understand the meaning of the phrase "common law." In general, the term refers to the system of laws that originated in England and has 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 the usage of legal precedent (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 aforethought. However, as the judges in that 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, intent to do serious bodily harm that results in death, a "depraved heart" murder, and felony murder (State v. Lankford, 1989). It is important to note, however, that while this common law definition further refined the concept of murder, it still did not articulate clear criteria for second degree forms of the crime.
Common law felonious homicide was further defined 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. Murder and manslaughter were also distinguished through the common law requirement of malice aforethought — a requirement applicable to murder but not to manslaughter (Blinn, 1950). Common law thus recognized three categories: felony murder, manslaughter, and justifiable homicide.
The elements of each classification were further refined by common law over time. The elements required 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, an indictment did not require that the degree of murder be specified in advance. A jury convicting a defendant of murder would determine whether that murder was first degree, second degree, or justifiable homicide, based on the jury's assessment of the facts presented in the case (Greenhoot, 1912).
The current statute in Idaho for murder is considerably more defined than common law. 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 the infliction of extreme and prolonged pain or brutality, and notes that any requirement of intent to kill is removed if death results from torture (IC 18-4001).
There is a clear alteration from common law in this definition. While the base elements of murder are still intact — unlawful killing and malice — the Idaho statute also adds protections for unborn children and addresses torture. Over the years, courts have debated whether murder charges can be brought when the victim was an unborn fetus. This statute resolves that issue directly. As a result, anyone convicted of killing a pregnant woman may be charged with two counts of first or second degree murder.
The addition of the torture component is similarly logical. If a person kills another during torture, he or she can be convicted of murder even if the ultimate intent was not death. One can reasonably conclude that torture carries the risk of death, and thus, even without premeditation, a murder conviction can follow.
This concept is further clarified by IC 18-4002, which defines express and implied malice. Express malice refers to a deliberate intention to take the life of another human being, while implied malice covers murder committed without provocation (IC 18-4002). Implied malice also helps explain why torture leading to death does not require express malice. The statute further provides that implied malice can be demonstrated by "an abandoned or malignant heart" (IC 18-4002). The intention here is to indicate that torture, as defined above, can only be carried out by those who place no value on human life and therefore possess an "abandoned" heart.
IC 18-4003 clearly lays out all forms of murder that qualify as first degree. In common law, first degree murder required only premeditation. Under 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. The statute also includes murder of a police officer, murder by a person previously convicted of murder, murder committed during the commission of another felony, murder committed while incarcerated, and murder committed while attempting to escape a penal institution (IC 18-4003).
This represents a clear evolution of the requirements for first degree murder. For several offenses under this classification, forethought or malice is not required. As social needs changed, the statute altered its definitions accordingly. Common law did not address murders of police officers, crimes committed during the commission of other felonies, or repeat offenders. The state clearly sought to address those circumstances not covered by common law that are specific to contemporary society.
Current Idaho statute also defines several categories of homicide not addressed in common law. Throughout IC 18, Idaho law defines first degree murder, second degree murder, manslaughter, justifiable homicide, and excusable homicide. Manslaughter is further divided into voluntary, involuntary, and motor vehicular homicide. Voluntary manslaughter is considered a "heat of the moment" killing — one done in passion (IC 18-4006). Involuntary manslaughter is a killing committed by a person acting unlawfully but not feloniously, or through negligence. Motor vehicular manslaughter applies only when the primary instrument of death is a vehicle and the operator was negligent (IC 18-4006). Justifiable homicide is recognized when the defendant was acting to protect property or person, or in an attempt to apprehend a criminal (IC 18-4009). Excusable homicide is recognized when the events leading to death were accidental (IC 18-4012).
"Contrasts historical and modern murder elements"
"Identifies three areas needing statutory reform"
Overall, common law definitions of the elements of murder have clearly set the stage for the statutes of Idaho that are now used in murder cases. While the foundational elements have remained stable, there have been numerous changes and adaptations to the statutes to better fit the needs of modern society. As society continues to evolve, the statutes will need to be further adapted to provide the clearest possible definitions of the elements required for a murder conviction.
You’re 67% through this paper. Sign up to read the remaining 2 sections.
Sign Up Now — Instant Access Already a member? Log inAlways verify citation format against your institution’s current style guide requirements.