PDF A Death Without Malice

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Here the killing was not only intentional but also preconceived and coordinated. Despite this reflection, he moved forward and took the victim's life. Example: Imagine instead in the scenario above that the inmate did not coordinate the killing. One day they passed unexpectedly in a hallway during inmate location shifts. The inmate attacks the victim and uses his sock to choke the victim to death before corrections officers can intervene.

What is malice?

He may not have reflected on the act in that instant. If not, it's not first-degree murder. Because he did intend to kill, however, express malice aforethought exists. He may be convicted of second-degree murder. Both first-degree murder and second-degree murder are serious felonies in California. If convicted of penal code section as first-degree murder, the defendant faces 25 years-to-life in the California state prison.

Evidence includes the circumstances surrounding the event.

Code of Laws - Title 16 - Chapter 3 - Offenses Against The Person

It includes the physical evidence and documents or data associated with the event. And it includes the statements that people make, such as a confession by the accused. Because express malice is the "intent to kill," key issues are determining the accused's identity and intent. These are often key areas of focus for the prosecution. Example: In the prison murder example directly above, the identity of the killer must be firmly established.

And the jury may or may not infer intent-to-kill based on the circumstances and the killer's actions. If the shank has the accused's fingerprints or DNA on it, for example, this would strengthen the claim that this inmate was the perpetrator. So would a confession by the accused or statements from other reliable people that the accused did so. Likewise, the shank's length and lethality would be considered. And the number and mode of stabbings would be relevant to whether intent-to-kill was present.

The jury then renders a verdict of guilty on the charge. There are many strategies available to defend against a murder charge based on express malice. Homicides may be legally justified or excused under the law. And the defense attorney may help to establish that the prosecution lacks the evidence to prosecute or convict the accused. The strategies also may demonstrate that the prosecution does not have enough admissible evidence to prove their accusation. Consequently, sometimes the state will drop the charges altogether.

Malice Lawyers

The accused may have killed someone intentionally while defending his or her own life, or another person's. If so, California's self-defense laws may justify the act. If deadly force is reasonable in light of the danger, the law permits a person to use deadly force. Example: Tony is walking home from work in the evening.

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An aggressor approaches him with a knife and demands money. Tony pulls out of small handgun he legally carries everywhere. He shoots the aggressor, who dies.

Here self-defense law likely permits Tony's actions, given the circumstances. Tony's use of deadly force was legally justified. He was faced with a deadly threat: a man with a knife who was robbing him.

And reasonable people may have used deadly force to protect themselves in such situations. If a person's beliefs about the threat or use of force are not reasonable, imperfect self-defense may apply. Example: In Tony's situation above, imagine that the aggressor doesn't try to rob Tony.

Instead, the man is playing a dice game on the sidewalk. The man tells Tony that he's busy on this side of the street. He tells Tony to walk home on the other side of the street "unless he wants a black eye. Here self-defense law probably does not excuse the killing. Tony's reaction was not reasonable under the circumstances.

  1. Code of Laws - Title 16 - Chapter 3 - Offenses Against The Person.
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He used deadly force without an imminent threat of death, serious bodily injury, or being the victim of another forcible or atrocious crime. He was threatened with a black eye. But most people wouldn't feel the need to kill the aggressor in light of this threat. Tony's beliefs about the threat against him and need to use his gun may have been sincere. His crime may be lessened from murder to voluntary manslaughter.


This is known as "imperfect" self-defense. He did kill intentionally and illegally. But at least he thought he was acting lawfully. The insanity rule in California may excuse killings done with express malice.

inimated.tk Where the accused meets the standard of the M'Nagten test, he or she is entitled to a verdict of "not guilty by reason of insanity. Example: A woman is suffering from severe post-partum depression. Her mental illness begins to affect her thoughts about the life and death of her baby.

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She begins to believe that the death of her baby is necessary for its eternal salvation. She drowns the baby in the bathtub. In this case express malice is present. The woman intended to take the life of her baby by drowning her. However, if she didn't understand the nature of life and death due to her diagnosable depression, she may be excused under the law. Likewise, if she believed that society would in fact favor the drowning of her baby as the proper thing to do, she may be excused.

When speaking with a suspect, the police must not violate constitutional rights. And, for a killing to be a murder, there typically has to be either an intent to kill, or, at minimum, conduct so reckless that it is punishable as murder. Murder usually is broken down into degrees. First degree murder punishes premeditated killings, the killing of especially vulnerable people such as children , and unintended killings done while intentionally committing another serious felony.

This last kind of first degree murder is called felony murder. Most people equate premeditation with long term planning.