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40 J. Crim. L. & Criminology 729 (1949-1950)
First Degree Murder--A Workable Definition

handle is hein.journals/jclc40 and id is 741 raw text is: FIRST DEGREE MURDER-A WORKABLE DEFINITION Keith W. Blinn The author is a Member of the bar in Wisconsin, Tennessee and Missouri; he was formerly attorney with National Labor Relations Board; Special lecturer in Labor Law at Washington University, St. Louis (1946) ; Professor of Law at University of North Dakota School of Law since 1946.-EDITOR. There has been considerable judicial as well as academic criticism of the hair-splitting technicalities distinguishing first and second degree murder as the result of words of art used to define the degrees of murder. But since the American legisla- tures have been prone to enact statutes calling for such refine- ments, it has been the duty of the legal profession and the courts to interpret and apply them. Unfortunately, all too fre- quently, both the bar and the bench have been careless and inex- act in the use of terms thus resulting in confusion and dissipat- ing the clear rule of guidance which the attorney seeks and the client demands. North Dakota in following this general trend has divided murder into two degrees by providing: Every murder perpe- trated by means of poison, or by lying in wait, or by torture, or by other willful, deliberate or premeditated killing, or in com- mitting or attempting to commit any sodomy, rape, mayhem, arson, robbery, or burglary, shall be deemed murder in the first degree; all other kinds of murder shall be deemed murder in the second degree.12 It is obvious at the outset that the North Dakota statute defining first degree murder divides itself into three categories. The first is where perpetrated by means of poison, or lying in wait, or by torture; the second is where results from the commission of certain specified felonies which are commonly considered felonies of violence-sodomy, rape, mayhem, arson, robbery and burglary; and the third is when it is by any willful, deliberate or premeditated killing. It is with this third category that the present comment is concerned. Under the common law felonious homicide-which was the killing of a human creature, of any age or sex, without justi- fication or excuse3-was divided into manslaughter and mur- der.4 The distinguishing characteristic between murder and manslaughter was the existence of malice aforethought in the former and its absence in the latter. Blackstone summarized 1. Cardoza, Law and Literature and Other Essays and Addresses (1931), page 97. 2. First enacted by North Dakota Code (1895) §7065 it is contained presently in North Dakota Code (1943) §12-2712. 3. 4 Blaekstone's Commentaries (Lewis' Ed.) 190. 4. 4 Blaekstone's Commentaries (Lewis' Ed.) 188. 729

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