Murder Principles

At common law, murder is killing another human being with malice aforethought. This means that the defendant had the intention to kill or create grievous bodily harm. The offense of murder requires proof of some specific elements beyond any reasonable doubt and while there different variations of the elements across jurisdictions, the common ones are those of mens rea and actus reus.

In Kenya

Section 206 of the penal code states that malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances

1. an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
2. knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
3. an intent to commit a felony;
4. an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

Section 203 defines the offence of murder and requires proof of the following elements beyond reasonable doubt. As was determined in CASE No E021 of 2021 [MURDER] State Vs F.O.O in order to establish the offence of murder, the prosecution must show:

1. Proof of death,
2. The cause of that death 
3. Proof that the death was due to an unlawful act or omission
4. That the unlawful act or omission was on the part of the suspect and
5. That the unlawful killing was with malice aforethought

In California

Proof of any one of the below types of malice is sufficient to establish the state of mind required for murder:

1. Express Malice - If the defendant unlawfully intended to kill
2. Implied Malice - The defendant acted with implied malice if :
   1. He intentionally committed the act
   2. The natural and probable consequences of the act were dangerous to human life. Meaning the defendant knew that he's act would be dangerous to another person
   3. At the time he acted, he knew his act was dangerous to human life
   4. He deliberately acted with conscious disregard for human life.

Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.

In Philippine

Murder is the unlawful killing of a person which is not parricide or infanticide, provided that any of the following circumstances is present:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense, or of means or persons to insure or afford impunity
2. In consideration of a price, reward or promise Note: For reward and promise to be considered, the same must the primary consideration in the commission of a crime or felony. If this aggravating circumstance is present in the commission of the crime, it affects not only the person who received the money or reward but also the person who gave it.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding on a vessel, derailment or assault upon a railroad, fall of an airship, by motor vehicles, or with the use of any other means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of volcano, destructive cyclone, epidemic, or other public calamity
5. With evident premeditation Note: The offender must have taken advantage of the same and the resultant condition.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. Note: Cruelty includes the situation where the victim is already dead and yet, acts were committed which would decry or scoff the corpse of the victim. The crime becomes murder.

Sources

1. Kenya Law - Criminal Case E021 of 2021 [Murder]
2. California Case Laws on Murder