ARTICLE: TRANSFERRED MALICE AND TRANSFERRED DEFENSES: A CRITIQUE OF THE TRADITIONAL DOCTRINE AND ARGUMENTS FOR A CHANGE IN PARADIGM Skip over navigation
LexisNexis® Browse Law Reviews and Treatises
Skip over navigation
Sign in with your lexis.com® ID to access the full text of this article.
-OR-
Order the full text of this article if you do not have a lexis.com® ID.
 
Price: 
US $22.00 (+ tax)
 
 

Copyright (c) 2010 Regents of University of California
New Criminal Law Review

ARTICLE: TRANSFERRED MALICE AND TRANSFERRED DEFENSES: A CRITIQUE OF THE TRADITIONAL DOCTRINE AND ARGUMENTS FOR A CHANGE IN PARADIGM

Summer, 2010

New Criminal Law Review

13 New Crim. L. R. 555

Author

Michael Bohlander*

Excerpt

INTRODUCTION

Transferred malice or transferred intent is an old hat 2 in criminal law theory: D wants to shoot V1 but hits V2, who is standing next to V1, by mistake. 3 D's intent to harm or kill V1 is "transferred" to V2. 4 The traditional reasoning behind this principle is straightforward: the offense of murder requires the killing of another human being, not of a particular human being; Jeremy Horder calls this the "impersonality principle." 5 D wanted to kill a human being; the fact that he did not manage to kill the one he intended to kill does not enter into the equation. That may be difficult to accept if V1 was D's wife's lover and V2 D's beloved and adored wife. Her death is the last thing D wanted. However, we may say that that is a question of motive, not of mens rea. Motive is irrelevant for establishing or excluding criminal liability, but it may be relevant for sentencing. So far, so good, one would say; but does the idea of the impersonality principle as expressed by Horder not actually put a big question mark over the idea that the intent needs to be "transferred" from one target to the other? In other words, is there a doctrine of transferred malice at all, 6 or are we not merely dealing with matters pertaining to the general ambit of the offense description as such instead? Does the use of the word ...
 
 
If you are interested in obtaining a lexis.com® ID and Password, please contact us at 1-(800)-227-4908 or visit us at http://www.lexisnexis.com/.
Search Documents
 
eg., Environmental Insurance Coverage Under the Comprehensive General Liability Policy
 
 
 
 

Lexis® Web - The only search engine that delivers free web content specifically from legal sites validated by LexisNexis® attorney editors and includes tools for faster research and more relevant results.

 
LexisNexis Store
Research Now - Go to lexis.com
Connect the Dots - Free 1 hour webcast
Share. Network. Discover. - Go to LexisNexis Communities