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Murder

Statute
18 USC 1111. Murder

  1. Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree.
  2. Within the special maritime and territorial jurisdiction of the United States, Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.
  3. For purposes of this section—
    1. the term “assault” has the same meaning as given that term in section 113;
    2. the term “child” means a person who has not attained the age of 18 years and is—
      1. under the perpetrator’s care or control; or
      2. at least six years younger than the perpetrator;
    3. the term “child abuse” means intentionally or knowingly causing death or serious bodily injury to a child;
    4. the term “pattern or practice of assault or torture” means assault or torture engaged in on at least two occasions;
    5. the term “serious bodily injury” has the meaning set forth in section 1365; and
    6. the term “torture” means conduct, whether or not committed under the color of law, that otherwise satisfies the definition set forth in section 2340 (1).

Jury Instruction
First Degree Premeditated Murder

The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

  1. That the victim named in the indictment was killed;
  2. That the Defendant caused the death of the victim with “malice aforethought,” as charged;
  3. That the Defendant did so with premeditated intent; and
  4. That the killing occurred within the special maritime or territorial jurisdiction of the United States.

To kill with “malice aforethought” means an intent at the time of the killing to take the life of another person, either deliberately or intentionally, or to willfully act with callous and wanton disregard for human life. The Government need not prove that the Defendant hated the person killed or felt ill will toward the victim at the time, but the evidence must establish beyond a reasonable doubt that the Defendant acted either with the intent to kill or to willfully do acts with callous and wanton disregard for the consequences and which the Defendant knew would result in a serious risk of death or serious bodily harm.

Killing with “premeditated intent” is required in addition to proof of malice aforethought in order to establish the offense of first degree murder. Premeditation is typically associated with killing in cold blood and requires a period of time in which the accused deliberates, or thinks the matter over, before acting. The law does not specify any exact period of time that must pass between the formation of the intent to kill and the killing itself. It must be long enough for the killer, after forming the intent to kill, to be fully conscious of that intent.

It is not necessary, however, for the Government to prove that the person killed—the victim—was the person whom the Defendant intended to kill. If a person forms a premeditated intent to kill one person and in attempting to kill that person actually kills another person, the killing is premeditated.

First Degree Felony Murder
The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

  1. That the victim named in the indictment was killed;
  2. That the Defendant caused the death of the victim, as charged;
  3. That the death of the victim occurred as a consequence of and while the Defendant was knowingly and willfully engaged in perpetrating or in attempting to perpetrate another crime, as charged; and
  4. That the killing occurred within the special maritime or territorial jurisdiction of the United States.

The crime charged here is known as a “felony murder”—that is, a killing that occurs during the knowing and willful commission of some other, specified felony offense. It is not necessary, therefore, for the Government to prove that the Defendant had any premeditated design or intent to kill the victim. It is sufficient if the Government proves beyond a reasonable doubt that the Defendant knowingly and willfully committed or attempted to commit the other crime as charged in the indictment, and that the killing of the victim occurred during, and as a consequence of, the Defendant’s commission of or attempt to commit that crime.

Second Degree Murder
The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

  1. That the victim named in the indictment was killed;
  2. That the Defendant caused the death of the victim with “malice aforethought,” as charged; and
  3. That the killing occurred within the special maritime or territorial jurisdiction of the United States.

To kill with “malice aforethought” means an intent at the time of the killing to take the life of another person, either deliberately or intentionally, or to willfully act with callous and wanton disregard for human life. The Government need not prove that the Defendant hated the person killed or felt ill will toward the victim at the time, but the evidence must establish beyond a reasonable doubt that the Defendant acted either with the intent to kill or to willfully do acts with callous and wanton disregard for the consequences and which the Defendant knew would result in a serious risk of death or serious bodily harm.

The difference between second degree murder and first degree murder is that second degree murder does not require premeditation. Premeditation is typically associated with killing in cold blood and requires a period of time in which the accused deliberates, or thinks the matter over before acting.

The crime here is second degree murder, and it is sufficient if the Government proves beyond a reasonable doubt that the Defendant killed the victim deliberately and intentionally (but without premeditation), or that the defendant killed the victim by acting with callous and wanton disregard for human life.