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When Does Life End?

At the other end of life’s path is the question of whether the victim of an unlawful act was “dead” (and hence no longer a “human being”) before the defendant acted. In past centuries, death was assessed practically. The majority rule was that a “human being” ceases to exist once the heart stops functioning. The majority of states today, however, now define death as “brain death,” although there are various definitions of this event.

Cause and Death

A related question arises as to whether a defendant’s act “causes” death, particularly if the actual cessation of breathing (or brain death) is due to the intervention of a third party. Most of these causation issues were discussed in Chapter 7, but one aspect must be addressed here. In earlier days, when victims tended to die soon after an assault, the common law established a rule that any death that did not occur within a “year and a day” of the assault was not “caused” by the assault. If the victim could survive for more than a year, it was at least arguable that something else (extraneous disease, incompetent medical assistance) had in fact caused the death. In such ambiguous circumstances, the better rule is to favor the defendant and find that the defendant’s act did not cause the death. Modern medical technology, however, has again created problems. We can now extend, sometimes by years or decades, the “life” of a person who, in other times, clearly would have “died” at an earlier date. Courts and legislatures confronted with cases of this kind have abolished the year-and-a-day rule as inconsistent with modern technology.


“Original” Murder: Killing with “Malice Aforethought”

The common law and statutes of fourteenth-century England originally defined “murder” as a killing with “malice prepense (aforethought).” There were no “degrees” of murder under the common law. The words meant precisely what they suggested in ordinary English: an intentional, preplanned, deliberate killing, motivated by ill will (malice) toward the victim.[2] Over a period of several centuries, however, judges redefined the term “malice aforethought” to encompass not only these calculated killings (often labeled “express” malice), but also those that resulted from extremely reckless or wanton conduct (often labeled “implied,” “universal,” or “constructive” malice). In this way the courts substantially broadened the legislature’s net for “murderers.” By the mid-nineteenth century, the term “malice aforethought” had come to mean in England any killing with

[2] This is what we earlier referred to in Chapter 4 as “traditional” mens rea. In a recent case, not involving a homicide, the court embraced that concept of malicious. In State v. Burgess, 205 W. Va. 87 (1999), defendant admitted that he had killed Henry’s cow in order to steal the meat, and that he shot it—once—through the head. Charged with “maliciously” killing the cow, defendant argued successfully that the most humane way to kill an animal was with one shot. Said the court, reversing his conviction: “(This) is the same method used throughout West Virginia by farmers and slaughterhouses every day … when one unlawfully dispatches a domestic animal belonging to another person by using a commonly accepted, humane method, and there is no evidence of any other form of malice, the killing is not malicious.”

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