Neighboring Malice Theories

Neighboring Malice Theories

Each state captures a different serious way of disregarding human life: aiming at death, aiming at grievous harm to a person's body, knowingly running a very high risk of death, and committing a felony in the course of which someone dies. The distinctions matter for two reasons. Exam facts often fit more than one state, so an answer has to say which one actually carries the case. Later rules also depend on which state the defendant had, and attempted murder is the clearest example, taken up in the last section of this chapter. Each neighbor is treated here only far enough to separate it from injury intent, and each is taught in full elsewhere.

Express Malice From Intent to Kill

Intent to kill is the one state the law calls express malice, meaning that the defendant's purpose or knowledge is aimed at death itself.² The intent exists when the defendant desires death, even if death is very unlikely, and it also exists when the defendant knows that death is substantially certain to follow. The second route mirrors the substantial-certainty principle from the earlier discussion of proof, where a defendant who knows that serious bodily injury is substantially certain to result is treated as intending it. The two intents differ only in their object, which is death in one and grievous injury in the other. That difference explains why a defendant can hold injury intent while lacking any wish for death and any knowledge that death will follow.

The law keeps a separate injury-intent route because a prosecutor who cannot prove the defendant wanted the victim dead is not left without a murder case. A defendant who deliberately set out to inflict grave harm on another person has already chosen to disregard that person's welfare in a serious way, and the label implied malice records that the culpability comes from a different aim.

The pair isolates the object of the defendant's purpose, since the weapon, the shot, and the death are identical. Where the evidence leaves open whether the defendant wanted death or only grave harm, both theories reach murder, so an answer that cannot choose between them can name both.

Depraved Heart Overlap

Reckless indifference to an unjustifiably high risk to human life, the abandoned and malignant heart, is a separate form of implied malice.⁵ Its focus is the risk the defendant knowingly ran, and no purpose to hurt anyone is required. The culpability lies in acting with conscious disregard for a very high chance that someone will die, and a risk that is merely elevated, or a danger the defendant never perceived, falls short of it.

Injury intent works from the opposite direction. The defendant's purpose is to do grave harm to a person, so the culpability lies in the choice to inflict that harm, and the prosecution need not show that death was a likely result. The driver who shot at the vandal's leg in the earlier illustration shows the difference. Wounds of that kind are rarely fatal, so a depraved-heart theory would be weak, yet the intent to wound grievously supplies malice by itself.⁶

The two theories overlap whenever the same conduct satisfies both. A defendant who fires into an occupied room meaning to wound someone inside has formed an intent to inflict grievous injury and has also knowingly created a high risk of death, so either theory reaches murder. The overlap does not change the outcome, but it helps the analysis, because a prosecutor who struggles to prove one mental state can rely on the other and a careful answer can name both.

Students lose this issue when they demand a high risk of death as a requirement of injury-intent murder. That showing belongs to the depraved-heart theory, while injury intent turns on what the defendant meant to do to the victim's body.

Felony-Murder Malice

The fourth route to malice bypasses the defendant's state of mind toward the victim altogether. An intent to commit a felony can supply implied malice under the felony-murder rule, even where the defendant intended neither death nor injury.⁹ The felonious purpose does the work that an intent aimed at the victim does in the other theories, so the prosecution need not prove injury intent or recklessness about human life. The rule has limits of its own, and a later chapter develops them. Here it matters only as a way of placing injury intent, since the two theories can both be present on one set of facts and an answer should keep them apart.

The contrast shows why felony intent is the only route that can operate when the defendant's mind was empty of any purpose toward the victim. Where no felony is being committed, the analysis returns to the other three states, and the defendant's actual intent controls. With the four states set side by side, the last section of this chapter turns to the setting where the choice among them matters most, because intent to injure supplies malice when death results but does not support attempted murder.

Express Malice From Intent to Kill

Of the four mental states that can make a killing murder, intent to kill is the one the law calls express malice.¹² The label follows what the defendant set out to do. A person who aims at death has chosen the very result the law of murder exists to prevent, so the law has nothing to infer or supply about the defendant's state of mind. A person who aims only at grievous injury has chosen something serious but one step short of that result, and when death follows the law implies malice from that lesser aim.¹³ California's homicide statute describes the express half in matching terms, treating malice as express when a deliberate intention unlawfully to take away a fellow creature's life is manifested, and the intent it requires is a purpose aimed at death as the objective or result of the act, not merely at the bare act of discharging a gun.¹⁴

Because the focus is on purpose, intent to kill exists whenever the defendant desires the victim's death, even if that outcome is very unlikely. It also exists when the defendant knows that death is substantially certain to follow, which applies to death the same principle that treats a defendant who knows serious injury is certain as intending it. Students lose this issue when they treat a slim chance of success as proof that no intent to kill existed. The odds bear on whether a jury believes the defendant wanted death, but the element is the desire itself, and a defendant who wanted death and got it has express malice however long the odds were.

The two scenes end with the same dead victim, so the only variable is the object of the defendant's purpose. Because either state makes a completed killing murder, the label rarely changes the result when death occurs. It matters when the victim survives, since an attempt requires specific intent and, of the four malice states, only intent to kill satisfies it.¹⁷ The last section of this chapter develops that limit.

Depraved Heart Overlap

Intent to injure is not the only route to implied malice that runs through dangerous conduct. A killing is also murder when the defendant acted with reckless indifference to an unjustifiably high risk to human life, the state the common law called an abandoned and malignant heart.¹⁹ This form of implied malice requires no purpose to hurt anyone, so it works from the opposite end of the defendant's mind: it asks what risk the defendant knowingly ran, where injury intent asks what the defendant meant to do to the victim's body. The two theories therefore point at different mental facts, yet they often fit the same conduct, and an answer has to keep them apart while recognizing where they meet.

The depraved-heart rule has two working parts, and each exists for its own reason. The first is awareness. The phrase abandoned and malignant heart proved too cryptic for juries, because it invited them to convict a defendant they simply thought a bad person, so courts translated it into a standard tied to what the defendant actually appreciated.²⁰ That is why wanton disregard for human life is read to carry subjective awareness of the danger, since a person cannot disregard a risk that was never perceived.²¹ In People v. Knoller, California's highest court went a step further and rejected a rule under which conscious disregard of the risk of serious bodily injury would suffice, requiring instead conscious disregard of the danger to human life.²² The second part is the degree of risk. Gross recklessness showing extreme indifference to human life means the defendant realized the act created a substantial and unjustified risk of death and went ahead anyway, while simple recklessness or gross negligence generally falls into a lesser homicide category.²³ The line sits there because a defendant who knowingly gambles on a very high chance of killing someone shows a disregard for life close to that of a defendant who aims at harm, and the law treats the two alike for that reason.

The overlap with injury intent follows from how serious bodily injury is defined. Where a jurisdiction defines it as injury creating a substantial risk of death, a defendant who intentionally does an act creating that risk has almost necessarily acted with reckless indifference as well, so injury-intent murder can be subsumed under depraved-heart murder.²⁴ Where the broader grave-not-trivial definition governs, the two theories separate, because a defendant who means to break another person's leg intends a non-trivial injury without creating an outrageous risk of death.²⁵ The Model Penal Code has no separate injury-intent category, so such a killing would reach murder only if the circumstances showed extreme indifference to human life.²⁶

The two scenes end the same way, with a dangerous act and a death, and differ in one variable: whether the defendant had a purpose to injure. Where that purpose exists, both theories are in play and either carries the case. Where it is missing, reckless indifference must carry the case alone, and the prosecution must then prove the knowing, very high risk to life. Students lose points when they let awareness of a risk of injury stand in for awareness of a risk to life, because the second is what depraved-heart malice demands.²⁹

Mayes v. People, an Illinois decision from 1883, shows a killing sustained as murder on recklessness. An intoxicated husband cursed his wife and hurled a beer glass in her direction as she tried to flee the room carrying a lamp; the glass shattered the lamp, and the flaming oil splattered over her clothes and body and killed her.³⁰ He claimed he had meant to throw the glass out a door, and his requested instructions would have made his intent to hurt her the question for the jury, but the court approved instructions that let the jury convict if all the circumstances showed an abandoned and malignant heart.³¹ A dispute over his aim could not rescue him, because the deliberately dangerous act toward a woman holding a lighted lamp demonstrated malice without proof that he meant to hit her.³²

Jurisdictions differ on how freely the two theories may be pleaded together. New York treats depraved indifference as a distinct mental state and holds that a one-on-one killing by a defendant who meant to injure or kill almost never qualifies, on the reasoning that a person aiming at a particular victim is not indifferent to that victim's fate.³³ Where that limit applies, the overlap shrinks and an intentional attack on one person is analyzed as injury intent alone. In a jurisdiction without it, the same facts may support both theories in the alternative.

Felony-Murder Malice

Injury intent, intent to kill, and reckless indifference to human life each place malice in the defendant's state of mind about a person: what the defendant meant to do to the victim's body, or what danger to life the defendant knowingly ran. The fourth route to malice skips that inquiry. Under the felony-murder rule, an intent to commit a felony supplies implied malice, so a defendant who intended neither death nor injury can still be guilty of murder when a killing results.³⁵ The felonious purpose does the work that a purpose aimed at the victim does in the other theories, which means the prosecution establishes malice by proving the felony and need not separately prove injury intent or awareness of a risk to life. This chapter treats the rule only to mark where injury intent ends, and a later chapter develops the rule itself.

The idea behind this route is old. Coke stated the common law as holding that a killing committed in the course of an unlawful act is murder even when the actor meant no harm to the person killed, as when a poacher's arrow aimed at a deer glances off and kills a boy hidden in a bush.³⁶ On that view the wrongfulness of the act stood in for the missing intent, and the defendant answered for the death as though the mind had been guilty toward the victim. That substitution is also the source of the rule's weakness, because it ties liability to the felony and loosens it from what the defendant meant. A concurring opinion in Commonwealth v. Brown, a Massachusetts case, observed that the rule weakens the link between criminal liability and moral blameworthiness.³⁷

The two scenes end with a dead victim and differ in one variable, the object of the defendant's purpose. In the first, the purpose pointed at property and an insurance payment, so there was no state of mind toward any person for the other theories to work on, and the felony is the only available source of malice. In the second, the purpose pointed at a person's body, which is injury intent, and no felony is needed to reach murder. The practical lesson for an answer is to identify the defendant's actual mental state first. Where a violent felony is under way, the defendant's own conduct often shows injury intent or reckless indifference already, so the felony route is one of several theories in play.

Some courts have retired the felony route altogether, so the answer also depends on the jurisdiction. In People v. Aaron, Michigan's highest court abolished malice drawn from the intent to commit a felony alone and defined malice as the intention to kill, the intention to do great bodily harm, or the wanton and willful disregard of the likelihood that the natural tendency of the behavior is to cause death or great bodily harm.⁴⁰ The facts of the felony may still be evidence of one of those states, but the jury must infer the state from all the evidence.⁴¹ The court expected little change in results, because in many cases where felony murder had been applied the other forms of malice could have been inferred from the evidence.⁴² Students lose this issue when they treat the felony itself as proof of malice without first asking whether the jurisdiction still allows that route.