Funk, A. E., Jr.

English

University of Kentucky

Kentucky Law JournalVolume 34 | Issue 2 Article 91946The Development of the Doctrine of ImpliedMalice in the Law of MurderA. E. Funk Jr.University of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Criminal Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationFunk, A. E. Jr. (1946) "The Development of the Doctrine of Implied Malice in the Law of Murder," Kentucky Law Journal: Vol. 34 : Iss.2 , Article 9.Available at: https://uknowledge.uky.edu/klj/vol34/iss2/9THE DEVELOPMENT OF THE DOCTRINE OF IMPLIEDMALICE IN THE LAW OF MURDERExpress malice entered the law of homicide about the thirteenthcentury and apparently fulfilled the needs of the times fairly satis-factorily, for it was in the early seventeenth century before the useof implied malice became important. The doctrine of implied malicedid not come into being until society found it necessary to achieve adesired result. Homicides were being committed in which no ex-press malice was present and-none could be inferred. Consequently,the need arose for a concept of malice, which is the necessary ele-ment for a conviction of murder, so that malice would be deemed toexist as a matter of law in cases where express malice was notpresent yet the killer deserved to be punished for murder.At first malice was implied in at least two instances. It is diffi-cult, however, to determine the order of their development in thelaw. Lambard and Coke, the early English law writers, list thesituations in which malice will be implied in this order (1) killingof an officer while resisting arrest (2) killing while attempting torob. The writer, however, would list these two categories in re-verse order, since the first case he has discovered in which malicewas implied was a case in 1555 involving a killing during the com-mission of robbery. In that case several men were convicted ofmurder for the killing of a by-stander while they were attemptingto rob a house.' This is the beginning of what later became knownas the felony-murder doctrine. It is very probable, however, thatthe early courts confined the inference of malice to killings whichoccurred in this particular type of felony. At any rate, the earlyEnglish law writers, who formed categories into which impliedmalice could be grouped, limited this category to robbery cases.'There would seem to be no reason for this other than the fact thatrobbery was one of the most serious crimes of the times. Coke, inhis work on criminal law, states a broad rule to the effect that akilling during the commission of any unlawful act constitutes mur-der. This statement has been severely criticized by subsequentwriters,' By 1701, there was no doubt that Coke's rule had beenmodified so as to apply only in cases of felonies.' In Regina v.'Mansell and Herbert's Case, 1 Dyer 128b, 73 Eng. Rep. 279(1555). Regina v. Dacre (Lord) (1543) is cited in 1 HALE, HISTORYOF PLEAS OF THE CROWN (1778) 439 and Foster, CROWN LAW (2ded. 1791) 354, as holding the same, but the reported case is notavailable to the writer.2 3 COKE, THIRD INSTITUTES (6th ed. 1680) 52; 1 HALE, HISTORY OFPLEAS OF THE CROWN (1778) 465.'STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND (1883)57.STUDENT NOTESWoodburne et al. the court stated by way of dictum that it wouldbe murder if a man shot at a fowl and accidentally killed a man, ifhe intended to steal the fowl since the stealing of a fowl was con-sidered a felony. This illustration indicates that the felony-murderrule, even with this limitation, was still too harsh.Apparently, however, the felony-murder rule was followedstrictly for some time. But in 1887, Justice Stephen, in Regina v.Serne,' placed a further limitation upon the rule. He instructedthe jury, ". . . I think that, instead of saying that any act donewith the intent to commit a felony which causes death amounts tomurder, it would be reasonable to say that any act known to be dan-gerous to life, and likely in itself to cause death, done for the pur-pose of committing a felony which causes death, should be murder."This instruction has had a great influence upon what is knowntoday as the felony-murder doctrine, and since that time the lawhas remained substantially the same.The second instance in which malice was implied was in thecases in which officers were killed while exercising their duties.Officers of the law were under peculiar protection which made thekilling of one of them, by a person resisting arrest, a flagrant defi-ance of the law of the state and hence malice was implied! Thefirst case the writer has discovered in which malice was impliedunder these circumstances was in Yong's Case decided in 1587.The law, that to kill an officer in resisting arrest was murder per seand the defendant could not be heard to say that he did not intendto commit harm, was followed strictly for some time. It was notuntil Regina v. Porter," in 1873, that this rule was altered. In thatcase the defendant, in an attempt to escape, killed an officer bykicking him. The court refused to imply malice. A few years later,in State v. Weisengoff,' an American case, an officer stepped uponthe running board of defendant's car in an effort to make an arrest.The defendant started the car and in an attempt to escape the juris-diction collided with a bridge, killing the officer. This court alsorefused to imply malice toward the officer. These cases, althoughexceptional, represent the modern and perhaps the better view.The third instance in which malice was implied in known asthe negligent-murder doctrine. This was a much later development'Rex v. Plummer, Kel. 109, 84 Eng. Rep. 1103 (1701).16 St. Tr. 53 (1722).16 Cox C. C. 311, 313 (1887).7 FOSTER, CROWN LAW (2d ed. 1791) 308:"4 Co. Rep. 40a, 76 Eng. Rep. 984, 985 (1587) ". . . The lawadjudges it to be murder, and that the murderer had malice pre-pense, because he set himself against the justice of the realm.""STEPHEN, DIG. CR. LAW (1887) art. 223, illus. 11.'12 Cox C. C. 444 (1873).85 W. Va. 271, 101 S. E. 450 (1919).KENTUCKY LAW JOURNALin the law than the two instances already discussed. One of thefirst cases involving the negligent murder was as early as 1638." Apark-keeper tied a young boy to a horse's tail and when he whippedthe horse the boy was dragged ansd so severely injured that deathensued. Because there was no intent to kill on the part of thedefendant, it became necessary for the court to imply malice fromthe wanton act of the defendant, and this the court did. This casewas closely followed by Hull's case" in which a laborer threw somestones from a roof. A stone hit a passer-by and caused his death.The court refused to imply malice, but only on the grounds thatthere was not sufficient negligence since it did not occur in a pop-ulated district, but by way of dictum said that had this occurredin a London street the laborer would have been guilty of at leastmanslaughter. The quantity of negligence necessary for a murderconviction during this era is not clearly defined. ' Today, however,in order to imply sufficient malice for a conviction of murder theact must be so dangerous to others and so wantonly done as to evi-dence a depravity of mind and an utter disregard of human life andthe actor must have knowledge of the danger.It is quite possible that all three of these circumstances inwhich malice is implied could be grouped today into one singlecategory, that one being the negligent-murder category. But, per-haps, from a practical viewpoint, it would be better to maintain theseparate and distinct categories with their limitations, which havebecome so firmly entrenched in our law, since the same result isreached.A. E. Fumx, JR."Halloway's Case, 1 Cro. Car. 131, 79 Eng. Rep. 715 (1628)"4 J. Kelyng 40, 84 Eng. Rep. 1072, 1073 (1664).'MORELAND, A RATIONALE OF CRIMINAL NEGLIGENCE (1944) 7;Davis, The Development of Negligence as a Basis for Liability inCriminal Homicide Cases (1938) 26 Ky. L. J. 209, 217.

The Development of the Doctrine of Implied Malice in the Law of Murder

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