Homicide questions feel broad because several doctrines overlap. The way to control them is to classify the killing first, then test whether felony-murder or mitigation doctrines shift the result.
Homicide questions feel broad because several doctrines overlap. The way to control them is to classify the killing first, then test whether felony-murder or mitigation doctrines shift the result.
MURDER at common law requires "MALICE AFORETHOUGHT"—but this doesn't mean what it sounds like! Malice doesn't require ill will, and "aforethought" doesn't require advance planning.
THE FOUR TYPES OF MALICE:
1. INTENT TO KILL (Express Malice): D actually wants victim dead. Can be proven by words ("I'm going to kill you") or actions (shooting at vital organs, using deadly weapon).
2. INTENT TO CAUSE SERIOUS BODILY HARM: D wants to seriously injure, but victim dies. The intent to harm "transfers" to support murder charge.
3. DEPRAVED HEART (Abandoned & Malignant Heart): D doesn't intend to kill anyone specific but acts with extreme recklessness showing "a depraved indifference to human life." Examples: Shooting into an occupied building, playing Russian roulette with another person, driving 100mph through a school zone.
4. FELONY MURDER: Death occurs during commission of certain dangerous felonies. No actual intent to kill required—intent transfers from the felony.
KEY POINT: Malice is NOT the same as premeditation. ALL murder requires malice, but only FIRST-degree murder requires premeditation.
HYPO: D is extremely angry at his neighbor V. D grabs a baseball bat and beats V repeatedly, screaming "I'm going to teach you a lesson you'll never forget!" V falls unconscious and dies from head trauma. D says "I didn't mean to kill him—just rough him up."
ANALYSIS: What type of murder?
INTENT TO KILL? D says no intent to kill. But can argue: repeated blows to head with deadly weapon shows intent to kill. Jury could infer intent from actions.
INTENT TO CAUSE SERIOUS BODILY HARM? D admits wanting to "rough him up." Repeatedly beating someone with a bat shows intent to cause serious injury. V died from the beating. This type of malice is clearly satisfied—D intended serious harm, V died.
DEPRAVED HEART? Probably not the best theory—D was targeting a specific person, not acting with general disregard for human life.
CONCLUSION: D is guilty of MURDER. The prosecution can prove malice through intent to cause serious bodily harm, even if they can't prove intent to kill.
DEGREE? Depends on premeditation (analyzed in next section).
Section sources
First and second degree murder are STATUTORY distinctions (not common law). The distinction matters for sentencing—first degree often carries life or death penalty.
FIRST DEGREE MURDER requires: 1. PREMEDITATION: Advance decision to kill (but can be VERY brief—even seconds) 2. DELIBERATION: Cool, dispassionate thinking (not rage or heat of passion)
The classic formulation: "The killer thought about it beforehand, however briefly, and made a decision to kill."
EVIDENCE OF PREMEDITATION: - Planning activity (buying weapon, lying in wait) - Motive (insurance policy, revenge) - Manner of killing (execution-style, multiple wounds showing persistence)
AUTOMATIC FIRST DEGREE (No premeditation analysis needed): - Felony murder during BARRK felonies - Killing by poison, lying in wait, torture
SECOND DEGREE MURDER is the "default"—murder WITHOUT premeditation: - Intentional killing in sudden rage (but not adequate provocation—that's voluntary manslaughter) - Depraved heart murder - Intent to cause serious bodily harm
KEY TRAP: "Heat of passion" is NOT automatic provocation. If provocation isn't "adequate," it's still murder—just second degree.
HYPO: D discovers his wife in bed with V. D runs to his car, retrieves his gun from the glove compartment, returns to the bedroom, and shoots V dead. Total time elapsed: 2 minutes.
ANALYSIS: What degree of murder?
FOR FIRST DEGREE (Premeditation): - D left the room, went to car, got gun, returned = planning activity - D had time to reflect (2 minutes, multiple steps) - Bringing back a gun shows deliberate choice of method
AGAINST FIRST DEGREE: - D discovered wife's adultery = highly provocative - Acting in "heat of passion" = no cool deliberation - 2 minutes may not be enough to "cool down"
VOLUNTARY MANSLAUGHTER ARGUMENT: - Adultery is traditionally "adequate provocation" - D was actually provoked (caught them in the act) - Was there time to cool off? 2 minutes is borderline...
LIKELY RESULT: Courts are split on these facts. Some hold that leaving and returning shows "cooling" and deliberation = FIRST DEGREE. Others find 2 minutes insufficient to cool = could be VOLUNTARY MANSLAUGHTER.
Prosecution will argue: The act of going to get a gun and returning shows D "thought about it"—that's premeditation. Defense argues: D was acting in blind rage the entire time—never cooled down.
Section sources
FELONY MURDER is a form of TRANSFERRED INTENT: The intent to commit the felony "transfers" to satisfy the malice requirement for murder, even without any intent to kill.
INHERENTLY DANGEROUS FELONIES (BARRK): - Burglary - Arson - Rape - Robbery - Kidnapping Deaths during these = usually FIRST DEGREE murder (automatic, no premeditation needed).
THE FOUR LIMITATIONS (Tested frequently!):
1. MERGER DOCTRINE: The underlying felony must be "independent" of the killing. If the only felony is assault that caused death, you can't "bootstrap" into felony murder—assault MERGES into the homicide. Burglary and robbery DON'T merge because they have purposes independent of harming the victim.
2. CAUSATION: The death must be a FORESEEABLE result of the felony. Death during robbery = foreseeable. Heart attack from witnessing a burglary = probably not foreseeable.
3. TIMING (Res Gestae): Death must occur DURING the felony, which includes: - Commission - Immediate flight from scene - Until felon reaches "place of temporary safety"
4. AGENCY vs PROXIMATE CAUSE (Who killed?): - AGENCY (majority): Felony murder only for killings BY a felon or co-felon - PROXIMATE CAUSE (minority): Any death during felony, even by police or victim
HYPO: D1 and D2 commit armed robbery of a convenience store. During the robbery, the store clerk grabs a gun and shoots at D1, missing D1 but killing Customer who was hiding behind a shelf.
ANALYSIS: Is this felony murder?
BASIC REQUIREMENTS MET: ✓ Inherently dangerous felony (robbery = BARRK) ✓ Death occurred during the felony ✓ Causation: Death was foreseeable (guns + robbery = risk of shooting)
THE KEY ISSUE: WHO KILLED? The CLERK killed Customer, not D1 or D2.
AGENCY THEORY (Majority): - Only killings by felons count - Clerk is not a felon - NO felony murder for D1/D2 under agency theory
PROXIMATE CAUSE THEORY (Minority): - Any death proximately caused by the felony counts - The robbery created the situation that led to the shooting - D1/D2 could be guilty of felony murder
CO-FELON LIABILITY: If this were agency jurisdiction and D1 had shot the clerk, BOTH D1 and D2 would be liable—co-felons share liability under Pinkerton.
FLORIDA follows AGENCY theory. On these facts, D1 and D2 would NOT be guilty of felony murder for Customer's death in Florida.
Section sources
VOLUNTARY MANSLAUGHTER is an INTENTIONAL killing that would be murder, but is "mitigated" to manslaughter because of adequate provocation causing "heat of passion."
It's NOT a defense—it's a PARTIAL DEFENSE that reduces murder to manslaughter.
THE FOUR ELEMENTS (ALL must be satisfied):
1. ADEQUATE PROVOCATION (Objective): Would a REASONABLE PERSON lose self-control? Traditional categories: Battery/assault, mutual combat, witnessing adultery, illegal arrest NOT adequate: Words alone, learning about (not witnessing) adultery, minor battery
2. ACTUAL HEAT OF PASSION (Subjective): Was D actually provoked? If D is actually cool and calculated, no mitigation even if reasonable person would be provoked.
3. NO REASONABLE COOLING TIME (Objective): Would a reasonable person have cooled down? Time + circumstances matter. An hour might be enough; walking 10 minutes while fuming might not be.
4. NO ACTUAL COOLING (Subjective): Did D actually cool off? If D had time to calm down and DID calm down, but then "rekindled"—no mitigation.
MPC APPROACH (More generous): "Extreme mental or emotional disturbance" with "reasonable explanation." Subjective standard—considers D's individual circumstances.
HYPO: D comes home and finds his wife in bed with V. D screams and V flees. D spends the next 3 hours drinking heavily. D then drives to V's house and shoots V dead.
ANALYSIS: Murder or voluntary manslaughter?
1. ADEQUATE PROVOCATION? Yes—witnessing adultery is traditional adequate provocation.
2. ACTUAL HEAT OF PASSION? Yes—D screamed, was clearly upset.
3. REASONABLE COOLING TIME? 3 HOURS is almost certainly enough time for a reasonable person to cool down. This element likely FAILS.
4. ACTUAL COOLING? D spent 3 hours drinking and then drove to V's house. This suggests D "stewed" rather than cooled, but the deliberate act of going to V's house might show actual cooling and renewed deliberation.
PROSECUTION ARGUMENT: 3 hours + driving to victim's house = cooling + premeditation = FIRST DEGREE MURDER.
DEFENSE ARGUMENT: D was drinking to cope, never actually cooled, was in continuous rage. The alcohol prevented rational thought.
LIKELY RESULT: Courts typically hold that 3 hours is sufficient cooling time. This looks like MURDER (probably first degree—the act of going to V's house shows premeditation).
KEY LESSON: The "cooling time" analysis often determines whether it's murder or voluntary manslaughter.
Section sources
Ask whether the killing is intentional, extremely reckless, mitigated by heat of passion, or connected to an enumerated felony. That sequence usually narrows the doctrine quickly.
Because some jurisdictions limit felony-murder liability to killings committed by the felon or the felon’s accomplice, rather than any death that occurs during the felony.