Concept
Other First-Degree Routes
Premeditation, deliberation
Other First-Degree Routes
Premeditation is one route to first degree murder, but it is not the only one. A statute that divides murder into degrees almost always places two situations in the top grade: an intentional killing accompanied by premeditation and deliberation, and a felony murder committed in the course of one of a short list of felonies.1 Many statutes add a third category defined by the means of killing. California's section 189, for example, makes murder by poison, by lying in wait, or by torture first degree murder, and then adds, as a separate clause, any other willful, deliberate, and premeditated killing.2 Michigan's statute pairs poison and lying in wait with the general premeditation clause,3 and Pennsylvania has used the same structure since the nineteenth century. Its 1860 act, applied in Commonwealth v. Drum, listed poison and lying in wait next to the general premeditation clause, and its current statute still defines an intentional killing to include killing by poison or lying in wait.4
The reason these means are listed by name comes from what they have in common. Each is a typical way of carrying out a killing that was planned, and a legislature that wants the heaviest penalty reserved for planned killings can reach these methods directly instead of leaving a jury to puzzle over how long the defendant reflected. The list therefore works as a shortcut: proof of the listed means stands in for separate proof of premeditation, though each means has requirements of its own that the sub-sections below take up.
Listed-felony murder is the other major route to first degree. A killing in the commission of an enumerated felony such as rape, robbery, kidnapping, arson, or burglary is first degree murder even if it was unintended.5 A prosecutor facing an intentional killing during a robbery will often charge it this way, because the felony-murder theory does not require proof of premeditation and deliberation on top of the intent to kill.6 The charging document need not name a particular type of first degree murder, and a conviction stands if the evidence proves any one of the alternatives.7 Felony murder has its own limits and its own reading, so the focus here stays on the three means of killing.
Lying in Wait
Lying in wait requires watching and waiting in a concealed position with the intent to kill or to do serious bodily injury.8 The dictionary description is the same: a series of acts of watching, waiting for, and hiding from someone, and the entry adds that the conduct shows premeditation and deliberation.9 Concealment is the element that carries the rule. A person who hides and waits has taken time to choose the place, to stay quiet, and to control the moment of attack, and that sequence is the kind of reflection the premeditation requirement is trying to find. The posture does not matter: the person need not be lying down, and may be sitting or standing so long as the watching and waiting happen out of sight.10
The element that fails most often in application is concealment. An assailant who crouches behind a parked truck to ambush a neighbor, intending to kill, is lying in wait. If the same assailant instead sits openly in the victim's living room at the family's invitation, or follows close behind the victim on the street and approaches when the victim pauses, the killing is not by lying in wait, because nothing was hidden.11 The waiting and the intent are identical in both versions, and only the concealment differs. Courts divide on whether the state must also prove an intent to kill beyond the intent required for lying in wait itself, so the statute's wording controls. In every version, a first degree charge on this theory fails where the defendant was never hidden.
Poison
Under a statute that lists murder by poison, the killing is first degree, but the homicide must first qualify as murder.13 The list elevates a murder; it does not turn every poisoning death into one. Poison covers more than a substance swallowed, since it may be inhaled or injected,14 and a Arizona decision treated heroin as a poison because any substance whose chemical action can cause death fits the definition.15
The qualifying step explains why a lawful or innocent administration of a substance that happens to cause death is not murder by poison. Murder status can come from an intent to kill or to do serious bodily injury, from conduct showing a depraved heart, or from a death that results from a felony.16 In State v. Wells, a prisoner trying to escape gave his guard chloroform and unintentionally killed him, and the first degree conviction by poison was affirmed because the poison was administered unlawfully.17 In Bechtelheimer v. State the defendant gave a girl poison intending to arouse her desire, not to kill her, and the first degree conviction was reversed because the Indiana statute required a purpose to kill by poison.18 The two outcomes show that the question turns on how the particular statute and the underlying homicide are framed. If the administration was careless but lawful, the crime may be manslaughter instead.19
The listed means also raises a question about premeditation. If a statute lists poison and then says any other willful, deliberate, or premeditated killing, one might expect a poisoning to require premeditation or at least intent to kill, but North Carolina has held that murder by poisoning is first degree whether or not it was otherwise willful, deliberate, or premeditated.20 The safe exam approach is to apply the statute as written and to state both possibilities.
Torture
Murder by torture requires pain endured over a period of time, and the defendant must intend to inflict that pain.22 Each half of the rule has its own logic. The duration requirement separates sustained suffering from the pain that accompanies any violent death, and the intent requirement separates a defendant who set out to cause suffering from one who simply caused pain on the way to killing. The pain has to be connected to the death as well: the act that causes the pain must be the act that causes the death.23 Burning, beating, and failing to call for medical help after inflicting a beating have all been held to be torture when accompanied by the intent to cause pain.24
A contrast shows the intent element at work. A parent who deliberately beats a child over an extended period in order to cause suffering has committed torture. A person who strikes one rage-driven blow that kills at once has caused pain without any intent to prolong it and without pain over time, and the torture theory fails even though the killing may be murder on another ground. Because the means is so far from rash action, legislatures that add further means to the traditional three get less help from the label. A court construing a statute that added child abuse reasoned that child abuse is often committed in a rash and impulsive way and does not correlate with deliberate, premeditated action, so the state had to prove malice aforethought by some other route, such as intent to kill or an abandoned and malignant heart.25
Lying in Wait
When a first degree murder statute lists killing by lying in wait next to poison, torture, and the general premeditation clause, it is naming a method of killing instead of a state of mind. California's section 189, for example, places murder perpetrated by lying in wait in the first degree list alongside any other willful, deliberate, and premeditated killing.27 Courts generally read the phrase to require watching and waiting in a concealed position, with an intent to kill or to do serious bodily injury to another.28 The standard legal dictionary description matches: a series of acts of watching, waiting for, and hiding from someone, with the intent of killing or seriously injuring that person.29 The rule therefore has three working parts: watching and waiting, concealment, and a harmful intent.
Each part earns its place for a different reason, and the pieces together explain why the statute skips separate proof of premeditation. A person who hides and waits has chosen a place, stayed quiet, and held back until the victim was within reach. That sequence is the kind of reflection the premeditation requirement is trying to detect, and it also gives the victim no warning and no chance to defend. For that reason the dictionary entry notes that lying in wait shows premeditation and deliberation and can raise the sentence.30 The intent element does different work: it ties the ambush to a purpose to harm, so that hiding in order to startle or to spy is not enough. Notice also that the required intent reaches serious bodily injury as well as killing, so the state need not prove a purpose to kill in every jurisdiction.31 The posture of the person is irrelevant, because someone sitting or standing out of sight is lying in wait just as much as someone crouched on the ground.32
The element that decides most cases is concealment, and a pair of contrasting facts shows how. An assailant who hides behind a hedge for hours and shoots the victim as he passes is lying in wait, because the hiding, the waiting, and the ambush all line up. By contrast, it is not lying in wait to follow close behind a victim on the street and approach when the victim pauses, nor to wait in the victim's living room at the invitation of his family, since in each case the element of concealment is missing.33 Decisions on the same point confirm that waiting alone is not enough. In State v. Brooks, standing outside a building with a shotgun waiting for the victim was held not to be lying in wait, and in People v. Merkouris, sitting in a parked car across the street from the victim's shop for several days before the shooting was held not to qualify either.34 Both defendants waited, and the second waited for days, yet neither was hidden. The reason follows from the rationale above: open waiting does not show the surprise and calculated concealment that justify treating the killing as first degree without more.
On an exam, run the three parts in order and give the most attention to concealment, since that is where a prosecutor's theory most often fails. A fact pattern that stresses how long the defendant waited is a trap if the defendant stayed in plain view, because duration cannot substitute for hiding. The jurisdictions also disagree about the intent element. Some courts require an intent to kill, while a California decision held that where a murder is shown to have been committed by lying in wait, a showing of intent is unnecessary to fix the degree.35 The safe approach is to apply the statute's wording and to state the intent standard as the general rule: intent to kill or to do serious bodily injury. If the defendant never hid, the lying in wait theory fails, though the killing may still be first degree on a premeditation or felony murder theory.
Poison
When a first degree statute lists murder by poison, the listing sorts a murder into the top grade; it does not define a new crime. California's section 189 shows the structure: it places murder perpetrated by poison in the same first degree sentence as lying in wait, torture, and any other willful, deliberate, and premeditated killing, and it sends "all other kinds of murders" to the second degree.37 Pennsylvania's 1860 act, applied in Commonwealth v. Drum, did the same thing when it named poison and lying in wait next to the general clause for willful, deliberate, and premeditated killing.38 The sorting question comes second. The first question is whether the death was a murder at all.
The reason for naming poison follows from how poisoning usually happens. A poisoner typically acquires the substance, chooses the victim's food or drink, and waits for the dose to work, all out of the victim's sight and with no chance of defense. Legislators who want the heaviest penalty reserved for planned killings can therefore treat the means as a shortcut and spare the jury a hard inquiry into how long the defendant reflected. That same logic marks the shortcut's limit. The list upgrades homicides that are already murder, and it cannot supply the missing mental state or the missing wrongfulness for a death that never qualified.39
The limit is stated directly: it is not necessarily murder by poison to kill with poison, as where someone administers it innocently and for a lawful purpose and a death results.40 The homicide must first qualify as murder, and it can do so in three ways: the defendant intended to kill or to do serious bodily injury, the conduct showed a depraved heart, or the death by poison resulted from a felony the defendant committed or attempted.41 A defendant who secretly stirs arsenic into a relative's soup intending to kill satisfies the first route, and the means then makes the murder first degree. A caregiver who gives a patient a lawful medication in the prescribed way, and who is shocked when it proves fatal, satisfies none of the three routes. The substance and the death are present in both situations, and only the mental state and the lawfulness of the act differ.
The word poison is read broadly. It need not be swallowed, since a poison may be inhaled or injected.42 An Arizona court defined poison as any substance introduced into the body by any means that is capable of causing death by its chemical action, and on that definition held that heroin qualifies.43 The breadth matters because the label is what moves a case into the top grade, so the more ways of delivering a harmful substance the term covers, the more important it is to remember that the underlying homicide must still be murder.
Decisions on the qualifying step reach different results depending on how the statute and the underlying homicide are framed. In State v. Wells, a prisoner trying to escape gave his guard chloroform and unintentionally killed him, and the first degree conviction was affirmed because the unlawful administration of poison causing death is murder.44 A Texas court reached the same result in Rupe v. State, where the defendant drugged a victim to rob him and the drugs killed him, because an unintended killing in an attempted robbery is murder and the poison made it first degree.45 By contrast, in Bechtelheimer v. State the defendant gave a girl a substance meant to arouse her desire, and when it killed her the first degree conviction was reversed, because the Indiana statute required a purpose to kill by poison.46 West Virginia states the general approach: the state must prove that the killing would have been murder at common law, since the poison clause only elevates a common law murder to the first degree.47 The differing outcomes show that a statute's wording can demand more than the common law minimum, so the statute controls.
A further question is whether a poisoning must also be premeditated. A statute that lists poison and then adds "any other willful, deliberate, or premeditated killing" suggests that premeditation, or at least an intent to kill, would be required for poison too, but courts have not always agreed. North Carolina's high court held in State v. Johnson that murder by poisoning is first degree whether or not it was otherwise willful, deliberate, or premeditated.48 On an exam, state the general rule that the death must first be murder, then note that some courts do not demand separate premeditation once the poison route is established, and apply the statute's words.
Torture
Murder by torture is the third traditional means that a first degree statute may list alongside poison and lying in wait, and like those two it sorts a killing into the top grade by describing how it was done. The rule has three working parts: pain endured over a period of time, an intent on the defendant's part to inflict that pain, and a causal link between the act that produces the pain and the death.50 Each part answers a different way a prosecutor's theory can fail, so the parts are best taken one at a time.
The duration requirement comes first. Almost every violent death involves some pain, and a statute that reached all of it would turn every murder into torture and leave the label with no sorting function. Requiring pain over a period of time reserves the category for sustained suffering. Courts have found it where a defendant burned, beat, or withheld medical aid after a beating.51 In one California case the defendant doused his wife with gasoline and lit a match, and she died three days later. In another the defendant stabbed his wife over a period of time, dragged her along the ground, struck her, and kicked her while she was still alive. A Pennsylvania court found the necessary design where the defendant chose to beat a child to death over a period of time.52
The intent requirement does subtler work, because it is not satisfied by the pain that happened to accompany the killing. A defendant who causes suffering on the way to a death has not necessarily set out to cause suffering.53 The intent to inflict pain is what connects torture to the idea behind first degree murder, since deliberately causing prolonged agony shows a cruelty and calculation comparable to premeditation. Some states make that link explicit. California requires a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain, though it does not require an intent to kill.54 A Colorado decision shows the same concern from the other direction. The defendant there severely beat his wife, causing a fatal brain hemorrhage, and the jury had been told that atrocity and cruelty amount to torture. The first degree conviction was reversed because, even if cruelty means severe pain, the infliction of pain as a means of persuasion, punishment, or revenge was missing.55
The third part is causation. The act that causes the pain must be the act that causes the death.56 The mechanism is that torture is a means of murder, so the torment has to be the means by which the victim actually dies. In an Arizona case the defendant burned the victim with a torch, which caused pain but not fatal burns, and then raped and strangled her. Instructing the jury on murder by torture was error because nothing showed that death was caused by torture, and the first degree conviction survived only because the killing was a felony murder.57 The same pairing of facts also supplies the no-answer on duration and intent. A defendant who kills with one sudden blow, without intent to inflict prolonged pain, has not tortured the victim, although the killing may still be murder, and even first degree murder, on a premeditation or felony theory.
A legislature that lengthens the traditional list weakens the shortcut. Where a statute added child abuse to poison, lying in wait, and torture, the court reasoned that child abuse is often committed in a rash, impulsive way and does not correlate with deliberate, premeditated action. The state therefore had to show malice aforethought some other way, such as an intent to kill or an abandoned and malignant heart.58 On an exam, pain alone is not torture. Test a fact pattern for prolonged suffering, for a purpose to cause it, and for a death produced by that very suffering, and if any part is missing, look for first degree murder on another route.