Homicide: Murder

1.0   Introduction

2.0   Objectives

• Main Content
• Elements of Murder : Actus Reus
• The Mens rea for Murder
• Constructive Malice
• Recklessness

4.0   Conclusion

5.0   Summary

6.0   Tutor-Marked Assignment

7.0   References/Further Reading.

Introduction

Murder is a heinous crime. It is a highly reported crime because it generally injures a strongly embraced social value and it is of such a public nature that it is likely to come to the attention of someone close to the victim and induce him/her to cooperate in bringing the offender to justice. A majority of murders arise from domestic conflicts and are perpetrated by familiar persons. These murders are straight forward, but assassinations and other are typical murders, ritual killings or other forms of serial murders are not. In all cases, however, the object of the criminal law is to detect, arrest, prosecute, convict and punish the offender. In punishing the offender, the criminal law seeks to achieve its purposes which range from retribution, deterrence, incapacitation to reformation and rehabilitation of the offender. To this end, the criminal law and practice have laid down certain elements of murder which must be proved by the state law officers and law enforcement agents charged with responsibility for prosecution of offenders, in order to sustain conviction, to which we shall now turn.

 Objectives

When you have studied this unit, you should be able to:

1. Explain the term murder
2. Identify the essential elements of murder
3. Analyse the rules on medical malpractices, escape cases
4. Discuss issues of causation (factual or legal).
5. Explain the concept of novus actus interveniens
6. Critique the criminal law of murder

Main Content

It is a hard fact that no body living on earth today will be alive to celebrate the next millennium. It is certain that everyone including those born today shall have died. Murder (and in deed, every form of killing) therefore is merely an acceleration of death. As Devlin J., (as he  then was) informs us, if life were cut short by weeks or months, it is just as murder as if it were cut short by years. One may add that the statement is still true even if life were cut short by minutes, hours, or days. It would afford no answer to a charge of causing death that the deceased was already suffering from a fatal disease from which he would, in any event, have died before long, when the injury, which accelerated death was inflicted. R v.Adams (1951) Crim LR.365.

Elements of Murder

• Actus Reus (“deed of crime”)

This is the wrongful deed that comprises the physical components of a crime, such results of human conduct as the law seeks to prevent.

Turner explained than in a simple case of murder, the actus reus is the victim’s death (brought about by the conduct of the murderer).

In this context, actus reus comprises the act, omission, or other events in the definition of the crime in issue. In relation to  murder,  it encompasses the act, omission or other events of which probable. Consequence may be and eventually is death. In essence, aclus reus refers to all the components of murder other than those which relate to the offender’s state of mind . e.g. X intending to kill Z, shoots him with a gun and Z dies on the spot.

An actus reus may be an omission

An omission is a form of non-feasance such as neglecting to supply necessaries to ones ward or a child , or an apprentice in the following situations;

• Where there is a duty on the offender to supply the necessaries,
• The ward (child or apprentice) is of tender age and unable to provide for him/herself.
• The offender is in actual possession of the means to provide for him or her.

There must be evidence of Death

Causing death of a living person directly of indirectly.

It is not fatal to the prosecution than the dead body of the  deceased is not found. No body has found where Aalaras body was buried, but the offenders were successfully prosecuted and hanged. See R.v. Sala 4 WACA 10, R v Enweonye 15 WACA; also see CC s. 307, 308, 309 unlawfulness.

• Unlawfulness:

That the killing is neither justifiable nor excusable (see previous unit) Rreasonable creature, that is, a human being, man, woman, or child. Human being is capable of killing .

Hostility to the state e.g,     alien enemy in actual prosecution of war.

Time of Death :

Death occurring within a period of the year and one day of the act or omission, which caused the death.

Self Assessment Exercise

What do you understand by “actus reus” in murder?

Mens rea (Guilty mind) for murder.

The Mens rea for murder at common law is ‘malice aforethought’. This consists.

1. Express Malice - Express malice is the specific intent to kill another human being

ii Implied Malice: Implied Malice includes:

• intent to inflict grievous bodily harm upon another
• intent to act in a manner that shows extreme reckless disregard for the value of human life
• intent to commit a felony that results in the death of another human being
• intent to resist a known, lawful arrest

Read the Criminal Code, section 316 once again and also the Renal Code section 221 (1).

Identify the specific intent indicated in 316 (1) and (4); then 316 (2), (3),

(5) and (6). Section 316 is not to be read in isolation.  See also section  24: Intention: motive, which states: “subject to the express provision of the Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omissions, which occurs independently of exercise of his will, or for an event , which occurs by accident.

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in while or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regard criminal responsibility.

This section has too often been repeated and should now be part of you.

There is not much difference between “Malice aforethought” (common law) and the intention for murder (section 316 and 24) of the Criminal Code applicable in Nigeria.

Accordingly the intention for murder may be expressed as:

• Intention to cause the death or grievous bodily harm to any person, whether such;

Person is the person actually killed or not.

• Knowledge that the act which causes death will probably cause the death of, or

Grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or by a wish that it may not be caused.

• Deliberate cruel act committed by one person against another where death occurs as

the result of a voluntary act of a the accused, which was intentional and unprovoked.

• Malice is implied in all cases where a man wilfully administers poison to another .
• Lays poison for another and either he or another takes it and dies

Illustration:

Kuti knowingly gives poison to Ade to administer as a medicine to Bayo. Ade neglects to do so. His child, Femi, accidentally gives it to Bayo, or other unconscious agent.

Kuti is as guilty as if he administered the poison by his own hand.

Bala intended to kill his wife, Mary. Mary is carrying their body on her back. Bala pursues her and inflicts match cuts on her back. The child  fell and died of head injuries

There is an intention to kill, or cause grievous harm to some one. Bala therefore is criminally responsible for the death of the child. See Basoyin v. AG (1966).

This is in line with a principle of law that a man intends the natural consequences of his act of omission. See R v. Nungu (1953); R v. Adu (1955)

Activity

See this principle of law again that, a man intends the natural consequences of his act or omission” Is this always true?

Attempt to justify the statement by reference to decided cases where it has been applied. It also has limitations. For example,  it  can  be rebutted by evidence of purely accidental circumstance and absence of intent to kill or cause grievous harm to any person.

Hyam v. DPP (1974) 2AER 41

Accused (H) was discarded by her lover who now began to pay his respects to another woman. At 2.0am, and driven by jealous, she set fire to the house in which the other woman lived with her three children. Two of his children were burnt to death. She pleaded that her  intention was to frighten the other woman into leaving the neighborhood that she had no intention to cause death or grievious bodily harm.

Held: intention to cause death or grievous bodily harm is established if it is proved that the accused deliberately and intentionally did an act, knowing that it was probable (highly probable) that it would result in death or grievous bodily harm to the victim even though he did not desire that result.

Lord Hailsham

“If a man, in full knowledge of the danger involved, and without lawful exercise, deliberately does that which exposes a victim to the risk of the probable grievous bodily harm. (in the sense explained) or death, and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to the extent as if he had actually intended the consequences to follow, and irrespective of whether he wishes it”

And lord Diplock:

“ No distinction is to be drawn in English law between the state of mind of one who does an act because he desires it to produce a particular evil consequence, and the state of mind of one who does the act, knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve, by doing the act.

What is common o both of these states of mind is willingness to produce the particular evil consequence.

Grievous Bodily Harm

In the context of murder, grievous bodily harm means some “really serious bodily harm” or “serious bodily harm”.

Statute defines the term as meaning harm which:

• amounts to maim or dangerous harm ( i.e harm endangering life)
• seriously or permanently injures health;
• is likely so to injure health;
• extends to   permanent  disfigurement    or   to  any   permanent   or serious injury to any external or internal organ, member or

A intentionally cuts B’s hand, Death results from bleeding and infection:

X intends to hit ‘Z’ slightly, with the flat surface of a cutlass and by accident inflicts grievous harm .h causing death.

Quare R v. Vickers (1957) WLR. 326: if a person does an act, which amounts to the infliction of grievous bodily harm, he cannot say that he only intended to cause a certain degree of harm. See the Criticism of this case at (1958) Criminal Law R. 15

At law, the test of liability for murder is not what the Accused contemplated , but what the ordinary reasonable man or woman in all the circumstance of the case would have contemplated as the natural  and probable result. (DPP v. Smith (1961)

This approach appears not consistent with section 316 (2) of the  Criminal Code, which postulates a subjective rather than objective test. The motive for causing death is not an essential ingredient of mind. It is irrelevant except that it may strengthen one’s case if proved.

The motive for causing death is irrelevant. For this reason Euthanasia is murder notwithstanding that, it is mercy killing or some form of murder with love in the heart.

Self Assessment Exercise

Explain the following intention:

• Express malice
• Implied malice
• Constructive malice
• Recklessness
• Negligence
• Motive
• Knowledge

Homicides, motivated by malice are usually committed in secret. It is rarely practicable to substantiate it by direct and positive evidence. Sometimes, the dead body or any trace of it cannot be found and it is not common that any person confesses to any participation in a crime, let alone the capital crime of murder. In rare cases of plea bargaining an offender may admit guilt, but this is hardly possible in murder which carries a mandatory sentence.

In cases of implied malice, the homicide is often committed in the presence of others. Thus, it is possible to prove it through those other persons or by circumstantial evidence.

Constructive Malice

The term constructive malice takes two forms:

1. Killing in the cause of furtherance of a violent felony (a possibly any felony) coupled with intention to commit that felony
2. Killing while attempting to prevent lawful arrest or bring about escape from lawful arrest or custody

In these types of cases, it amounts to murder if:

• the purpose is unlawful
• the nature of the act or omission is likely to endanger human life. See Criminal

Code  sections 306, 315, 316 (3)  – (6).    Also, Andrews V DPP (1937)AC 576 at 585

If X strikes Y with an axe – head, intending to inflict on him mere grievous bodily harm and Y dies in the process, this is killing in the  cause or furtherance of that felony. See Vickers (1957) 2 Q B 664, and Cunningham (1981) 2 A ER 863 HL

In cases of “attack” the judicial attitude seems to be in favour of the principle that the law imposes an obligation on the offender to take responsibility for the unforeseen consequences of his/her actions.

The reason for this may be that:

• the offender was acting ‘wickedly’.
• There is little moral difference between one who intends to kill another who intends to cause grievous harm

 

On the other hand, it sounds strange that a person can be convicted of murder if death results from, say his intentional breaking of another arm or (where the victim suffered broken nose and cuts or gagged, which an action would in most cases be unlikely to kill.

Activity

In one paragraph each, describe the facts and decisions in Smith v DPP, AndrewsVDPP(1932),Vickers(1957)I and Cunningham

Recklessness

This is more relevant in manslaughter or we shall see in the next unit.

Conclusion

There must be concurrence of mens rea and actus reus to amount to murder. It is the duty of the prosection to prove every  element  of murder.

 Summary

We have explained the concepts of actus reus and mens rea in murder. These terms are no where defined. The mens rea for murder is intention or Recklessness. Intention is foresight  coupled  with  desire. Recklessness is knowledge of certain facts or foresight without desire. Little thaught has been given to the question whether intention is foresight or whether foresight is the platform to assume or disprove intention. Certain special murders have not been mentioned. Examples are murders by act of third parties eg medical doctors, and strangers. This is the focus of the next unit.

Tutor-Marked Assignment

Explain with reference to decided cases, the mens rea for murder.

Reference/Further Reading

Ormerod, D: (Ed) 2005, Smith & Hogan. Criminal Law 11^th Ed, Oxford University Press, Oxford.

Jefferson, M (2003), Criminal Law. 6^th Ed, Longman. 600, London Bryan, et el: (1990), Blacks law Dictionary 7^th Ed. West Group VS