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Collman v. State8/23/2000
cott, Jr., Criminal Law § 7.1, at 605-06 (2d ed. 1986); Model Penal Code and Commentaries § 210.2 cmt. 1 at 13-15 (Official Draft and Revised Comments 1980). Today, the phrase "malice aforethought" does not even approximate its literal meaning. Hence it is preferable not to rely upon that misleading expression for an understanding of murder but rather to consider the various types of murder (typed according to the mental element) which the common law came to recognize and which exist today in most jurisdictions: (1) intent-to-kill murder; (2) intent-to-do-serious-bodily-injury murder; (3) depraved-heart murder; and (4) felony murder. LaFave & Scott, Criminal Law § 7.1, at 605.
Originally, in addition to an intent to kill, malice included "perhaps an element of hatred, spite or ill-will," though this element is not actually necessary. Id. A cold-blooded murderer could kill a kidnap victim, for example, simply for the sake of convenience. Nevertheless, as demonstrated below, consistent with its ordinary connotation, malice of all four types includes an intent to act wrongfully.
Nevada expressly recognizes three of these malicious states of mind in its statutes and case law. NRS 200.020 defines express malice as the "deliberate intention unlawfully to take away" another's life and implied malice as "an abandoned and malignant heart." These forms of malice are, respectively, the mental elements for intent-to-kill murder and depraved-heart murder. Nevada statutes and this court have apparently never employed the phrase "depraved heart," but that phrase and "abandoned and malignant heart" both refer to the same "essential concept . . . one of extreme recklessness regarding homicidal risk." Model Penal Code § 210.2 cmt. 1 at 15; see also Thedford v. Sheriff, 86 Nev. 741, 744, 476 P.2d 25, 27 (1970) (malice as applied to murder includes "general malignant recklessness of others' lives and safety or disregard of social duty"). NRS 200.030(1)(b) defines felony murder, in which " he felonious intent involved in the underlying felony may be transferred to supply the malice necessary to characterize the death a murder." Ford v. State, 99 Nev. 209, 215, 660 P.2d 992, 995 (1983). Instruction number 11 was patterned after the felony-murder instruction approved of in Ford. See id. at 214, 660 P.2d at 995.
Nevada defines by statute three kinds of first-degree murder.
Murder of the first degree is murder which is:
(a) Perpetrated by means of poison, lying in wait, torture or child abuse, or by any other kind of willful, deliberate and premeditated killing;
(b) Committed in the perpetration or attempted perpetration of sexual assault, kidnaping, arson, robbery, burglary, invasion of the home, sexual abuse of a child or sexual molestation of a child under the age of 14 years; or
(c) Committed to avoid or prevent the lawful arrest of any person by a peace officer or to effect the escape of any person from legal custody. NRS 200.030(1).
The issue presented in this case is: for first-degree murder under subsection (1)(a) of NRS 200.030, can malice be established simply by proving that the killing was done by an enumerated means? The State answers this question affirmatively, offering three or four arguments in support of its position. We conclude that none has merit.
Malice versus willfulness, deliberation, and premeditation
First, the State asserts that: (1) the means enumerated in NRS 200.030(1)(a) constitute willfulness, deliberation, and premeditation as a matter of law, and (2) willfulness, deliberation, and premeditation subsume malice aforethought as a matter of law. Thus, the State contends, the
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