Murder, a crime defined by Blackstone as the unlawful killing of "any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied," by a person of sound memory and discretion. The element of "malice aforethought" is of the essence of murder. The greatest difficulty in determining whether a homicide be murder is generally connected with the question of malice. It is quite certain that the malice need not be malice against the individual killed; for if one maliciously shoots at a person with intent to kill him, and missing him kills another, it is quite as much murder as if he had executed his intention. Nor indeed need it be directed against any person in particular. If one shoots into a crowd without knowing a person there, and kills one of them, it is murder; for such a criminal is regarded as having malice against the world, or in the words of the old cases, be is hostis hu-mani generis. Still there must be malice; for probably no kind or degree of mere carelessness or negligence would make a case of homicide one of murder. So if the death were caused by mere mistake, whether of law, of fact, or of the person, it would not be murder, unless it would have been murder if the law or fact or person had been what they were supposed to be.
The principal exception to the necessity of proof of actual malice would seem to be where the death was caused without intention, but by the commission of or in attempting a felony. This distinction is so nice, that while, if one shooting at his neighbor's fowls with intent to destroy them shoots him by accident, this would not be murder, yet shooting them with intent to steal, and with the same result, would, it is said, bo murder. Drunkenness has been considered in reference to manslaughter, and a somewhat similar rule is held as to murder; that is, intoxication, if it negatives the supposition of malice, would prevent the crime from being murder, unless it was a state of temporary insanity, purposely brought on that under it murder might be committed safely, in which case it would not be regarded as any excuse whatever. - Cases of compulsion have been somewhat considered; and it has been generally held that strict and actual compulsion was an excuse, but nothing less. If a captive on board a pirate were compelled to act with the crew in committing murder by threats of immediate death, this compulsion would undoubtedly be a sufficient excuse; but nothing less than a compulsion of this character would have this effect; as no command from a master, and no threat of a whipping, would be any excuse at all for a servant.
But a jury, who can now judge of the law as well as the fact in criminal cases, if they were satisfied, from the evidence of command or threat, of the absence of all malice, either general or individual, would seldom render a verdict of murder. So if a crime be committed by a wife in presence of her husband, it is presumed by the law that she did the act under his coercion, and she is not herself guilty. But murder and treason are exceptions to this rule; and here it is said that no proof of actual constraint by the husband operates as an excuse. - It seems quite well settled, as a general rule, that if many are confederate in any unlawful act, and some one of them, in doing the act, commit a murder, all are guilty; as if several conspire to seize a vessel forcibly and run away with her, and one opposing them is killed in the conflict, all are guilty of murder, in law, who are present, aiding and abetting in the unlawful act. No consent or even request of the party killed is any excuse whatever. At common law, counselling of suicide, if it causes the suicide, is murder.
So if two persons agree to commit suicide together, and use means which take effect only on one, it is murder in the survivor, provided he was present when the act was committed, as otherwise he is only an accessory before the fact. In such a case, however, the jury would be very likely to treat the case as manslaughter. If one, by working on the fears of another, or by mere unkind usage, put one into " a passion of grief or fear " whereof he or she, being perhaps at the time in feeble health, dies, this, says Hale, though murder or manslaughter in the sight of God, is not so at common law. Most later writers have adopted this view, which is said to be in accordance with the codes of France and of Scotland; while in some countries the law is held to be, as an English judge in a recent case declared it to be in England, that one is guilty if he cause death by force " applied either to the body or the mind." We consider Hale's view as being that of the common law, and of the prevailing law of the United States. It was a rule of the common law, that it was murder to procure the conviction and execution of an innocent person charged with a capital crime by perjury.
Now, however, we are satisfied that both in England and in the United States such a crime would be punished only as an aggravated case of perjury. - The question has arisen, whether one can be indicted in a state or country for murder, if the criminal did actually in that state give the fatal blow, or fire the fatal shot, but the injured party went into another state or country and died there. The weight of authority, and we think of reason, is that no such indictment can be maintained. No country can punish a crime committed abroad, or partially abroad, unless by its own municipal provisions, applied to its own citizens. In accordance with this view, the statute of the United States against "murder on the high seas" has been held inapplicable to a case where a fatal blow was given with malice on the high seas, but the wounded person reached the shore and died on land. - An important question has exercised the courts, both of England and the United States, in respect to the evidence of murder and the burden of proof. Some courts have held that if the government proved the death alleged, and that this death was caused by the prisoner, the burden of proof then shifted, and it lay on the prisoner to prove want of malice, or accident, or self-defence, or any other justification.
Other courts hold the contrary, and we are satisfied that in cases of murder, the actual and practical rule whereby the fate of the prisoner is determined should be and is that the burden of proof remains on the government until they have proved their whole case, which includes the killing and the intent, or " the malice aforethought," without which there can be no murder. This evidence may undoubtedly be indirect or circumstantial, and must be so generally, because malice is a condition of mind and purpose. But it would not be enough in modern times to charge A with the murder of B, and rest the charge upon the mere proof that A killed B, unless there were something in the time, place, or circumstances of the killing, or of the conduct of the prisoner in reference to it, which brought home to a jury a belief that he was moved by malice aforethought. - In some of the states, although not generally, the crime of murder has been divided into degrees; and where capital punishment is retained, only murder in the first degree is punishable with death. - It should be added, that whenever a person is indicted and tried for murder, it is competent for the jury to bring in a verdict of manslaughter.