Report No. 35
Topic Number 36
Whenever the question of minimising the cases of penalty of death come up, a plausible test-premeditation-suggests itself to the mind. It seems natural to assume that if a murder is premeditated, the sentence of death would be justified, and otherwise it would not be. The test has, to some extent, been adopted in some States in America as a basis for the sentence of death in case of murder, either by itself or in conjunction with other elements.
A typical example is the statute establishing degrees of murder, enacted in 1794 in Pennsylvania, under which all murders which shall be perpetrated by means of poison or by lying in wait or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery or burglary, shall be deemed "murders of the first degree1" (attracting the death penalty).
1. The section is quoted in R.C. Report, p. 168, para. 486.
707. This classification-deliberate and premeditated killing as a 'first degree murder'-has been adopted in certain other States of America, with or without variations1. Thus, in Massachusetts, "first degree murder" includes "murder committed with deliberately premeditated malice aforethought or with extreme atrocity or cruelty" or "in the commission or attempted commission of a crime or for example, France-murder committed with "premeditation or lying in wait" is punishable with death, instead of imprisonment for life2-3.
Again, in some countries of Europe4-5 which have abolished the death penalty, imprisonment for life may be awarded for certain forms of intentional homicide if the offender acted with premeditation or if he committed homicide in order to facilitate or conceal another crime, etc., while a lesser punishment is awarded in other cases. In England, in 1866, a Royal Commission was appointed to enquire into the provisions and operation of laws under which the punishment of death was inflicted, etc.
That Commission recommended the division of murder into two degrees, on the model adopted in certain States in the United States, and suggested that the punishment of death should be retained for all murders deliberately committed with express malice aforethought, and for all murders committed in or with a view to perpetration etc. of certain felonies6-7.
1. About 27 States, including Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Idaho, Iowa, Kansas, Maryland, Michigen, Missour, North Carolina, Rhode Island, etc., See Perkins Criminal Law, (1957), p. 72 and foot-note 38.
2. See R.C. Report, p. 182, paras. 518, 519.
3. The French provision is quoted in R.C. Report, p. 443, para. 21(c).
4. See summary in R.C. Report, p. 180, para. 513.
5. See the provisions in Norway, Sweden and Switzerland, cited in R.C. Report, p. 444.
6. See R.C. Report, p. 169, para. 488.
7. For details of this proposal, see R.C. Report, pp. 467 to 471 (Appendix 12-Degrees of murder). The draft of the Royal Commission of 1866 is at p. 470, ibid.
708. Judicial decisions in the majority of the States in America, however, appear to have whittled down the meaning, of "premeditation" in this context, so that, in substance, intention to kill is now sufficient to constitute murder in the first degree. Actual deliberation and long premeditation' are unnecessary, so long as there was time (however short) for these processes to occur1-2.
1. See Keedy History of the Pennsylvania Statute creating Degrees of Murder, 97 University of Pennsylvania Law Review 759.
2. See also cases and literature cited in Paulsen and Radish Criminal Law and its processes, (1962), pp. 558, 561.
709. It will be sufficient to refer to the discussion in what is regarded as the leading case on the Pennsylvania statute1:-
"The intention to kill is the essence of the offence. Therefore, if an intention to kill exists, it if wilful; if this intention be accompanied by such circumstances as evidence of a mind fully conscious of its own purpose and design, it is deliberate: and if sufficient time be afforded to enable the mind fully to frame the design to kill, and to select the instrument, or to frame the plan to carry this design into execution, it is premeditated. The Law fixes upon no length of time as necessary to form the intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury, from all the facts and circumstances in the evidence.".
1. Commonwealth v. Drum, (1868) 58 Pa 9.
710. Sometimes a different view is taken1, namely, a killing is deliberate and premeditated, only if it results from real and substantial reflection. Even according to this view, it is not necessary that deliberation and pre-meditation must take place after the formation of the intent to kill. If the offender has pondered over the possibility of taking another's life and has reflected upon this matter cooly and fully before a decision is reached, he may truly be said to have killed "wilfully, deliberately and premeditatedly", though, after his intent to kill was fully formed, he carried his intention into effect as rapidly as thought can be translated into action2.
What is required is that the homicide must be intentional, that the intent to kill must be formed by a mind that is cool rather than one that is unreasonably inflamed or excited, and that the thought of taking the victim's life must have been reflected upon for some appreciable length of time before it was carried into effect, although not necessarily after the fatal decision was made3.
1. See the cases cited in Perkins Criminal Law, (1957), p. 75, footnotes 62 to 65.
2. People v. Russo, 133 Cal App 468: 24 P 2d 580 (1933); J Perkins Criminal Law, (1957), p. 76.
3. Cf. Perkins Criminal Law, (1957), p. 76.
711. It now remains to be considered whether "premeditation" would be a satisfactory test for the award of the highest penalty. There seem to be theoretical as well as practical objections of considerable weight to the adoption of such a test.
712. Premeditation and deliberation as tests for imposing the sentence of death have been regarded as unsatisfactory in America1. The trend in several European countries2 is towards discarding them. Difficulties of interpretation, particularly in demarcating the respective areas of premeditation and intention, are likely to be created if they are adopted. A criterion susceptible of such diverse and conflicting interpretation ought not be made the basis for liability to suffer death.
1. Cf. Cardozo's criticism quoted in R.C. Report, p. 186, para. 523.
2. Cf. R.C. Report, p. 81, para. 514.
713. Moreover, these criteria may be inadequate because, as was pointed out in the Home Office Memorandum to the Royal Commission1, among the worst murders are some which are not premeditated, such as those committed in connection with rape, or by criminals who are interrupted in the commission of some serious offence and use violence without premeditation but with a reckless disregard of the consequences to human life.
1. R.C. Report, p. 174, para. 500.
714. It should also be pointed out that many killings, though premeditated, may deserve a sympathetic treatment-e.g., "mercy killings".
As has been observed by Stephen1, if A, passing along the road, sees a boy sitting on a bridge over a deep river, and out of mere wanton barbarity, pushes the boy into the river and drowns him, there is no premeditation, and yet A's act represents more diabolical cruelty and ferocity than that involved in premeditated murders. The very fact of an internal long struggle may be evidence that the homicidal impulse was an aberration-far more the product of extraordinary circumstances than the true reflection of the normal self of the offender, while a sudden killing may be the direct expression of a very vicious natures2-3.
1. Stephen History of the Criminal Law of England, (1883), Vol. 3, p. 94.
2. Cf. see the views of Professor Wechsler, stated in R.C. Report, p. 175, para. 500.
3. See also Model Penal Code (A.L.I.), May 1959, Tentative Draft No. 9, Comments to Articles 201-6, p. 70.
715. We may also quote here the opinion of Lord Chief Justice Parker1 on the question of premeditation. He said,
"When does a murder reach the stage of being planned? In 5 minutes? A few hours? A day?"
It may also be noted, that premeditation by itself is not treated by the Courts in India as a ground for imposing the higher penalty2.
1. Lord Parker, quoted by Mr. J.A. Hanan in New Zealand Parliamentary Debates. (Debates on the Crimes Bill, 3rd October, 1961, Col. 2685).
2. Cf. Spencer J. in Bhyri Rajayya (in re:), AIR 1921 Mad 303.
716. In view of all these difficulties, and having regard to the fact that there is no mandatory sentence of death even now for the offence of murder in India, we do not recommend adoption of the test of premeditation, as a criterion for the sentence of death for murder.