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Collman v. State8/23/2000
there was no question that malice was a required element to prove murder by an enumerated means.
The state's position is not only contrary to the law regarding murder by enumerated means, but seeks to expand the doctrine of felony murder when the weight of authority calls for restricting it. Many commentators criticize the felony-murder doctrine, and the trend has been to limit its applicability, not extend it. See Model Penal Code § 210.2 cmt. 6 at 29-42; LaFave & Scott, Criminal Law § 7.5, at 622-23, 632, 640-41.
Furthermore, first-degree murder by an enumerated means fundamentally differs from felony murder. Although child abuse, as discussed below, is a special case, the means originally enumerated in subsection (1)(a)--use of poison, lying in wait, and torture--do not denote crimes. Thus, it cannot be presumed that they necessarily carry a felonious intent which can supply the malice necessary to characterize a killing as a murder. For example, friends and family who spring a surprise birthday party on a middle-aged man as he steps into his home may be "lying in wait," but they are not liable for murder if he collapses and dies from a heart attack because they did not act with malice. As noted, lying in wait is defined as watching, waiting, and concealment from the person killed with the intention of killing or inflicting bodily injury upon that person. See Moser, 91 Nev. at 812 & n.3, 544 P.2d at 426 & n.3. In effect, this definition places the requisite malice within the element of lying in wait.
Of course, a prosecutor would not charge murder in the case of a surprise party, but even wrongful acts involving an enumerated means and causing death may not constitute murder. For example, if a nurse carelessly administers a lethal dose of the wrong medicine to a hospital patient, he has killed someone by means of poison. But the nurse is liable for murder only if he acted with extreme recklessness regarding the risk to human life, "an abandoned and malignant heart." See Mattison, 481 P.2d at 197 (holding that absent a specific intent by the defendant to kill, to find murder by means of poison, the jury had to find beyond a reasonable doubt that the defendant "had full knowledge that his conduct endangered the life of decedent, but that he nevertheless deliberately administered the poison with conscious disregard for that life").
Murder by torture warrants further discussion because the State has cited authority for the proposition that the malice required for murder can be transferred from the commission of torture. This is the only authority that supports the state's position, and it provides support only if it can be extended to apply to murder by other enumerated means. However, it appears that no court has taken this approach with poison, lying in wait, or any other enumerated means. More important, we conclude that the approach is not sound even in regard to torture.
The Supreme Court of North Carolina reasoned that murder by torture "is analogous to felony murder in that malice may be implied by the very act of torturing the victim. Torture is a dangerous activity of such reckless disregard for human life that, like felony murder, malice is implied by the law." State v. Crawford, 406 S.E.2d 579, 587-88 (N.C. 1991). The California Supreme Court also held: "When a killing is perpetrated by means of torture, the means used is conclusive evidence of malice and premeditation, and the crime is murder of the first degree." People v. Turville, 335 P.2d 678, 685 (Cal. 1959), overruled on other grounds by People v. Morse, 388 P.2d 33, 44 (Cal. 1964).
Although as a practical matter malice may almost always be factually present when
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