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Law School Case Brief

Commonwealth v. Drum - 58 Pa. 9 (1868)


At the common law murder is described to be, when a person of sound memory and discretion unlawfully kills any reasonable creature in being and under the peace of the Commonwealth, with malice aforethought, expressed or implied. The distinguishing criterion of murder is malice aforethought. But it is not malice in its ordinary understanding alone, a particular ill-will, a spite or a grudge. Malice is a legal term, implying much more. It comprehends not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, in its legal sense, prevailed.


Defendant was charged with murder in a case certified into the Court of Oyer and Terminer of Westmoreland County (Pennsylvania), and, before a verdict was reached, the jury was charged as to the intent necessary for murder, second degree murder, and manslaughter. The jury convicted defendant of second degree murder after being charged that first degree murder required malice aforethought; second degree murder lacked the requirement of an intent to kill, while manslaughter was the unlawful killing of another without malice.


Was the jury's  finding of second degree murder the correct charge based on the evidence that was presented?




All murder, not of the first degree, is necessarily of the second degree, and includes all unlawful killing under circumstances of depravity of heart, and a disposition of mind regardless of social duty; but where no intention to kill exists or can be reasonably and fully inferred. Therefore, in all cases of murder, if no intention to kill can be inferred or collected from the circumstances, the verdict must be murder in the second degree. 

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