The elements of common law murder are:

1. Unlawful
2. killing
3. through criminal act or omission
4. of a human
5. by another human
6. with malice aforethought.[11]

 Unlawful – This distinguishes murder from killings that are done within the boundaries of law,
such as capital punishment, justified self-defence, or the killing of enemy combatants by lawful
combatants as well as causing collateral damage to non-combatants during a war.[12]
 Killing – At common law life ended with cardiopulmonary arrest[11] – the total and irreversible
cessation of blood circulation and respiration.[11] With advances in medical technology courts
have adopted irreversible cessation of all brain function as marking the end of life.[11]
 Сriminal act or omission – Killing can be committed by an act or an omission.[13]
 Of a human – This element presents the issue of when life begins. At common law, a fetus was
not a human being.[14] Life began when the fetus passed through the vagina and took its first
breath.[11]
 By another human – In early common law, suicide was considered murder.[11] The requirement
that the person killed be someone other than the perpetrator excluded suicide from the definition
of murder.
 With malice aforethought – Originally malice aforethought carried its everyday meaning – a
deliberate and premeditated (prior intent) killing of another motivated by ill will. Murder
necessarily required that an appreciable time pass between the formation and execution of the
intent to kill. The courts broadened the scope of murder by eliminating the requirement of actual
premeditation and deliberation as well as true malice. All that was required for malice
aforethought to exist is that the perpetrator act with one of the four states of mind that
constitutes "malice".
The four states of mind recognized as constituting "malice" are:[15]

i. Intent to kill,
ii. Intent to inflict grievous bodily harm short of death,
iii. Reckless indifference to an unjustifiably high risk to human life (sometimes described as an
"abandoned and malignant heart"), or
iv. Intent to commit a dangerous felony (the "felony murder" doctrine).
Under state of mind (i), intent to kill, the deadly weapon rule applies. Thus, if the defendant
intentionally uses a deadly weapon or instrument against the victim, such use authorizes a
permissive inference of intent to kill. In other words, "intent follows the bullet". Examples of deadly
weapons and instruments include but are not limited to guns, knives, deadly toxins or chemicals or
gases and even vehicles when intentionally used to harm one or more victims.
Under state of mind (iii), an "abandoned and malignant heart", the killing must result from the
defendant's conduct involving a reckless indifference to human life and a conscious disregard of an
unreasonable risk of death or serious bodily injury. In Australian jurisdictions, the unreasonable risk
must amount to a foreseen probability of death (or grievous bodily harm in most states), as opposed
to possibility.[16]
Under state of mind (iv), the felony-murder doctrine, the felony committed must be an inherently
dangerous felony, such as burglary, arson, rape, robbery or kidnapping. Importantly, the underlying
felony cannot be a lesser included offense such as assault, otherwise all criminal homicides would
be murder as all are felonies.
As with most legal terms, the precise definition of murder varies between jurisdictions and is usually
codified in some form of legislation. Even when the legal distinction between murder and
manslaughter is clear, it is not unknown for a jury to find a murder defendant guilty of the lesser
offence. The jury might sympathise with the defendant (e.g. in a crime of passion, or in the case of a
bullied victim who kills their tormentor), and the jury may wish to protect the defendant from a
sentence of life imprisonment or execution.

Degrees of murder[edit]
"Murder in the second degree" redirects here. For the 2016 album, see Murder in the Second
Degree.
"Premeditated murder" redirects here. For the 1995 Serbian film, see Premeditated Murder.
Many jurisdictions divide murder by degrees. The distinction between first- and second-degree
murder exists, for example, in Canadian murder law and U.S. murder law.
The most common division is between first- and second-degree murder. Generally, second-degree
murder is common law murder, and first-degree is an aggravated form. The aggravating factors of
first-degree murder depend on the jurisdiction, but may include a specific intent to kill, premeditation,
or deliberation. In some, murder committed by acts such as strangulation, poisoning, or lying in
wait are also treated as first-degree murder.[17] A few states in the U.S. further distinguish third-
degree murder, but they differ significantly in which kinds of murders they classify as second-degree
versus third-degree. For example, Minnesota defines third-degree murder as depraved-heart
murder, whereas Florida defines third-degree murder as felony murder (except when the underlying
felony is specifically listed in the definition of first-degree murder).[18][19]
Some jurisdictions also distinguish premeditated murder. This is the crime of wrongfully and
intentionally causing the death of another human being (also known as murder) after rationally
considering the timing or method of doing so, in order to either increase the likelihood of success, or
to evade detection or apprehension.[20] State laws in the United States vary as to definitions of
"premeditation". In some states, premeditation may be construed as taking place mere seconds
before the murder. Premeditated murder is one of the most serious forms of homicide, and is
punished more severely than manslaughter or other types of homicide, often with a life
sentence without the possibility of parole, or in some countries, the death penalty. In the U.S, federal
law (18 U.S.C. § 1111(a)) criminalizes premeditated murder, felony murder and second-degree
murder committed under situations where federal jurisdiction applies.[21] In Canada, the Criminal
Code classifies murder as either 1st- or 2nd-degree. The former type of murder is often called
premeditated murder, although premeditation is not the only way murder can be classified as first-
degree.

Common law[edit]
According to Blackstone, English common law identified murder as a public wrong.[22] According to
common law, murder is considered to be malum in se, that is an act which is evil within itself. An act
such as murder is wrong or evil by its very nature. And it is the very nature of the act which does not
require any specific detailing or definition in the law to consider murder a crime.[23]
Some jurisdictions still take a common law view of murder. In such jurisdictions, what is considered
to be murder is defined by precedent case law or previous decisions of the courts of law. However,
although the common law is by nature flexible and adaptable, in the interests both of certainty and of
securing convictions, most common law jurisdictions have codified their criminal law and now have
statutory definitions of murder.

Exclusions[edit]
General[edit]
Although laws vary by country, there are circumstances of exclusion that are common in many legal
systems.

 Killing of enemy combatants who have not surrendered by lawful combatants, in accordance
with lawful orders in war, is also generally not considered murder; although illicit killings within a
war may constitute murder or homicidal war crimes. (see the Laws of war article)
 Self-defense: acting in self-defense or in defense of another person is generally accepted as
legal justification for killing a person in situations that would otherwise have been murder.
However, a self-defense killing might be considered manslaughter if the killer established control
of the situation before the killing took place. In the case of self-defense it is called a "justifiable
homicide".[24]
 Unlawful killings without malice or intent are considered manslaughter.
 In many common law countries, provocation is a partial defense to a charge of murder which
acts by converting what would otherwise have been murder into manslaughter (this is voluntary
manslaughter, which is more severe than involuntary manslaughter).
 Accidental killings are considered homicides. Depending on the circumstances, these may or
may not be considered criminal offenses; they are often considered manslaughter.
 Suicide does not constitute murder in most societies. Assisting a suicide, however, may be
considered murder in some circumstances.
Specific to certain countries[edit]

 Capital punishment: some countries practice the death penalty. Capital punishment may be
ordered by a legitimate court of law as the result of a conviction in a criminal trial with due
process for a serious crime. The 47 Member States of the Council of Europe are prohibited from
using the death penalty.
 Euthanasia, doctor-assisted suicide: the administration of lethal drugs by a doctor to a terminally
ill patient, if the intention is solely to alleviate pain, in many jurisdictions it is seen as a special
case (see the doctrine of double effect and the case of Dr John Bodkin Adams).[25]
 Killing to prevent the theft of one's property may be legal, depending on the jurisdiction.[26][27] In
2013, a jury in south Texas acquitted a man who killed a prostitute who attempted to run away
with his money.[28]
 Killing an intruder who is found by an owner to be in the owner's home (having entered
unlawfully): legal in most US states (see Castle doctrine).[29]
 Killing to prevent specific forms of aggravated rape or sexual assault – killing of attacker by the
potential victim or by witnesses to the scene; legal in parts of the US and in various other
countries.[30]
 In Pakistan, the killing of a woman or girl in specific circumstances (e.g., when she
commits adultery and is killed by her husband or other family members, known as honor killing)
is not considered murder.[31][32]
 In the United States, in some states and in federal jurisdiction, a killing by a police officer is
excluded from prosecution if the officer believes they are being threatened with deadly force by
the victim. This may include such actions by the victim as reaching into a glove compartment or
pocket for license and registration, if the officer thinks that the victim might be reaching for a
gun.[33]
 Space jurisdiction is similar to that of international waters. Therefore, a murder committed in
outer space is subject to jurisdiction in the country that owns the space craft in which the killing
transpired. In the event the murder occurred on an extraterrestrial planet (e.g. the Moon), no
country can own land of any other planet so the killer is bound by the laws of the country in
which they originate. This also applies to the ISS per agreement signed by all countries that
have worked on the station so all astronauts are covered by extraterratorial jurisdiction.