Tag: history

Episode 5: Felony Murder and Constructive Malice

 

Today we take a whirlwind tour through the controversial topic of felony murder and constructive malice!

In today’s episode, we ask whether it is murder when someone kills someone else unintentionally but during the course of a serious crime (or a felony). Normally killing has to be intentional to qualify as murder – but does the criminal context change this rule? For instance, is it murder when a robber accidentally shoots a cashier during an armed robbery? What about when a kidnapper smothers someone by accident while kidnapping them?

Some modern common law jurisdictions are deeply divided on this topic, and we’ll see why after looking at felony murder’s chaotic history. We’ll see early-modern common law superstars butt heads over obscure examples (is it murder when you go poaching but your arrow goes astray and kills a boy lurking in a nearby bush?). We’ll also see how an early-eighteenth century attempt to clear things up just muddles it even more and ultimately gives us the term “felony murder.” We’ll ask what’s so constructive about malice anyways. And finally, we’ll see how theory and practice never quite seem to match up in this bizarre area of the law.

Warning: modern terms for what we’re discussing today vary, particularly in the USA. Depending on the jurisdiction, you can find felony murder under a variety of names and degrees.

Got any comments on felony murder? Think I didn’t come down hard enough on the doctrine, or conversely, that I was too critical of it? Send me your thoughts on our contact page or @murderhistorian on Twitter!

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Sources and notes:

  • Guyora Binder’s article, “The Origins of American Felony Murder Rules,” Stanford Law Review, Oct., 2004, Vol. 57, No. 1 pp. 59-208 is the fullest history imaginable on this topic. If you’re wondering what happened in the 19th century, go to Binder!
  • See Glanville Williams, “Constructive Malice Revived, “The Modern Law Review,” Vol. 23, No. 6 (Nov., 1960), pp. 605-629 for an explanation of why DPP v Smith was wrongly decided.
  • Felony Murder as a First Degree Offense: An Anachronism Retained, 66 Yale L.J. (1957) is interesting, especially for its description of how felony murder became a first-degree murder offence in early post-Revolutionary USA
  • If you’re wondering about the common-law felony “mayhem” (as I certainly was), check out this recent blog post from legal historian Gwen Seabourne

 

 

Episode 4: Unintentional Killing

 

Welcome to today’s episode on unintentional killing! 

We all know (now) that if you kill someone intentionally, it’s murder. But is it ever murder when someone kills someone else unintentionally?

Today, we look at a whole range of unintentional killings and ask whether they’re murder, manslaughter, or sheer accident. Is it murder if you mean to kill one person but end up unintentionally killing another? What is it when you mean to give someone a little push or slap and end up killing them by accident? What if you mean to hurt someone really badly but end up killing them instead? And what if you just do something really stupid and kill someone by mistake?

Murder weapons vary widely in this episode. We’ll see a man who tried to poison his wife with an apple, a blacksmith who killed his apprentice with a bar of iron, a roofer who killed a pedestrian with a shingle, and a provoked man who killed a woman with an unlucky broomstick throw. 

Warning: modern terms for what we’re discussing today vary widely, particularly in the USA. Depending on the jurisdiction, you can find not only different degrees of murder, but also degrees of manslaughter, as well as terms like felony murder and depraved heart murder.

Be sure to subscribe on your podcast app. Click here to subscribe to Apple Podcasts, Spotify, and Google Podcasts. Follow us on Twitter @murderhistorian.

Sources and notes:

  • Today’s story about the boys on the overpass is inspired by a real-life modern case. You can read a news article about it here and here. In this case, the boys brought things to the overpass to throw off it and they aimed at hitting the cars. The boy who threw the fatal rock pleaded guilty to second-degree murder and the others pleaded guilty to manslaughter.
  • These boys shouldn’t be singled out though. Edward Coke and Matthew Hale, writing in the seventeenth century, also talk about people throwing stones into crowds. And there’s there notorious English case, R v Hancock and Shankland (1985), where two grown men dropped a concrete block on a road and killed a driver. In their defence, they said they only meant to intimidate the person in the car, not to kill anyone.
  • The blacksmith and the broomstick case are reported by Kelyng. The comment about the box on the ears and the blow with a little with a stick are from Holt, in Mawgridge’s case. The story about the servant who shoots into the cornfield is from Hale. Kelyng and Hale both talk about the case with the roofer throwing tiles off a roof. The poison apple case is from Plowden. 
  • While I refer to the idea of “great” or “grievous” bodily harm, the term doesn’t appear consistently in the law until the nineteenth century. Nonetheless, the idea of intending to do harm that’s likely to kill someone is distinguished from the idea of doing a little bit of harm much earlier than that. And Michael Foster writing in the mid-eighteenth century, emphasizes the distinction.

Michael Foster (1689–1763) – new century, new judicial hairdo. Foster is another one of my favourite sources on the history of murder.

 

 

 

Episode 2: Medieval Murder and the Birth of Manslaughter

Welcome to our first fully historical episode of the History of Murder Podcast!

In today’s episode, we look back at the history of murder law in medieval England. We’ll see a major problem with it: there’s only one punishment for all kinds of killing, and that punishment is death. Do we really want to punish everyone who kills someone else with death? Is it fair to punish everyone in the same way? Don’t we want to punish the serial killer more than we want to punish the random person who killed someone during a bar fight? These problems give rise to the birth of manslaughter, but not before we take a detour through one of the weirdest concepts in the common law, benefit of clergy.

The murder of Archbishop Thomas Becket in Canterbury Cathedral. Not only a classic medieval murder, but a pivotal one for the development of manslaughter (via benefit of clergy).

 

Sources

In this episode, I rely heavily on the following article by Thomas Green and take the Walter and Thomas example from it. Note that their case is a mere footnote in this enormous and very rich article! 

Thomas A. Green, “The Jury and the English Law of Homicide, 1200-1600,” Mich. L. Rev. 74 (1976): 413-99. Available for download here. 

You can find John Salisbury’s case reported by Plowden in The Commentaries, Or Reports of Edmund Plowden, Containing Divers Cases Upon Matters of Law, Argued and Adjudged in the Several Reigns of King Edward VI., Queen Mary, King and Queen Philip and Mary, and Queen Elizabeth [1548-1579] (Part 1), available here on Google books (pp 100-101 of the original text, but note the strange pagination).

For a great overview of benefit of clergy and the early years of manslaughter, check out the introductory chapter to Kesselring, K. J. 2019. Making Murder Public : Homicide in Early Modern England, 1480-1680 (version First edition.) First ed. Oxford: Oxford University Press. 

Episode 1: Welcome to the History of Murder Podcast!

Welcome! Today’s episode is an introduction to the History of Murder podcast series. 

In this episode, we ask all the important questions: what is murder and who cares about its history? Is it really murder when you cannibalize your shipmate in a moment of desperation? It is? Darn. Also what is the common law? And what is this podcast all about?

The History of Murder Podcast is a legal history podcast that looks at the crime of murder and how it developed over time in the common law.

As we discuss in today’s episode, the common law is one of the world’s major legal systems. It’s the basis for the legal system in numerous countries — almost anywhere that was once an English or British colony. This includes the United States, Canada, Australia, New Zealand, Jamaica, Cyprus, India, Pakistan and Singapore, to name just a few. It originates in England (and Wales!), and so much of the older history we look at in this podcast will focus on English history, although we’ll certainly see developments in other places too, especially in the post-Revolutionary USA.

Please use the contact page to reach out if you have questions or comments, or message us on Twitter @murderhistorian (caveat: not a historian)!