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Spring 2000


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8. Missing the Mark
Henry visits Alice and John who are now married. He tries to shoot John but misses him and kills Alice, sitting in a rocking chair behind John. Has Henry murdered Alice?



Commentary. Earlier on I made the observation that there was more to murder than killing someone. In this puzzler John has killled Alice; of that fact we need have little doubt. But did he murder her?

In many jurisdictions murder is described simply as "the unlawful killing of a human being." Much is secreted away in that one word "unlawful." The law also distinguishes between different degrees of unlawful killing. "First degree murder" is a "deliberate and pre-meditated" unlawful killing; "second degree murder" is an unlawful killing done "deliberately" but "without pre-meditation." "Manslaughter" is the negligent killing of another human being, without "pre-meditation," or expressed or implied "intent."

One way to mark the difference between a charge of murder and a charge of manslaughter is a charge of murder requires the prosecution to show evidence of intent; whereas a charge of manslaughter does not require intent. If you were the District Attorney in Henry's jurisdiction would you charge Henry with murder or manslaughter? Remember, put most simply, "murder" is "the intentional killing of another human being." What do you think?

Henry certainly intended to kill another human being. So we can say that he acted with intent. no? Perhaps this is too simple. Henry did act with intent, but not with the intent to kill Alice. Henry intended to kill John. He missed John and killed Alice. In most European countries Henry would be charged only with manslaughter or if he were tried for murder, he would likely be convicted only of manslaughter. How so?

Well, in Europe they take seriously what an actor had in mind at the time of the shooting. Henry intended to kill John; he did not intend to kill Alice. Therefore his killing of Alice was not intentional. In many jurisdictions in the United States not only would Henry be likely to be charged with murder, he is likely to be found guilty of murder, on the presumption that he intended to kill another human being and succeeded in doing so. What do you think? Would you find Henry guilty of murder or manslaughter? Then consider the next puzzler.

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