§ 2501. Criminal homicide.

(a) Offense defined.--A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.

(b) Classification.--Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter.

§ 2502. Murder.

(a) Murder of the first degree.--A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

(b) Murder of the second degree.--A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.

(c) Murder of the third degree.--All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.

§ 2503. Voluntary manslaughter.

(a) General rule.--A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:

(1) the individual killed; or

(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.

(b) Unreasonable belief killing justifiable.--A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.

(c) Grading.--Voluntary manslaughter is a felony of the first degree.

§ 2504. Involuntary manslaughter.

(a) General rule.--A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

(b) Grading.--Involuntary manslaughter is a misdemeanor of the first degree. Where the victim is under 12 years of age and is in the care, custody or control of the person who caused the death, involuntary manslaughter is a felony of the second degree.

§ 2505. Causing or aiding suicide.

(a) Causing suicide as criminal homicide.--A person may be convicted of criminal homicide for causing another to commit suicide only if he intentionally causes such suicide by force, duress or deception.

(b) Aiding or soliciting suicide as an independent offense.--A person who intentionally aids or solicits another to commit suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor of the second degree.

§ 2506. Drug delivery resulting in death.

(a) Offense defined.--A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.

(b) Penalty.--A person convicted under subsection (a) shall be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years.

18-3-102 Murder in the First Degree

(1) A person commits the crime of murder in the first degree if:

(a) After deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person; or

(b) Repealed.

(c) By perjury or subornation of perjury he procures the conviction and execution of any innocent person; or

(d) Under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another; or

(e) He or she commits unlawful distribution, dispensation, or sale of a controlled substance to a person under the age of eighteen years on school grounds as provided in section 18-18-407(2), or 18-18-407(1)(g)(I) for offenses committed on or after October 1, 2013, and the death of such person is caused by the use of such controlled substance; or

(f) The person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the victim.

18-3-103 Murder in the Second Degree

(1) A person commits the crime of murder in the second degree if:

(a) The person knowingly causes the death of a person; or

(b) Acting either alone or with one or more persons, he or she commits or attempts to commit felony arson, robbery, burglary, kidnapping, sexual assault as prohibited by section 18-3-402, sexual assault in the first or second degree as prohibited by section 18-3-402 or 18-3-403, as those sections existed prior to July 1, 2000, or a class 3 felony for sexual assault on a child as provided in section 18-3-405(2), or the felony crime of escape as provided in section 18-8-208, and, in the course of or in furtherance of the crime that he or she is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by any participant.

(1.5) It is an affirmative defense to a charge of violating subsection (1)(b) of this section that the defendant:

(a) Was not the only participant in the underlying crime; and

(b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and

(c) Was not armed with a deadly weapon; and

(d) Did not engage himself or herself in or intend to engage in and had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury.

(2) Diminished responsibility due to self-induced intoxication is not a defense to murder in the second degree.

(3)

(a) Except as otherwise provided in paragraph (b) of this subsection (3), murder in the second degree is a class 2 felony.

(b) Notwithstanding the provisions of paragraph (a) of this subsection (3), murder in the second degree is a class 3 felony where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person; but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is a class 2 felony.

(c) For purposes of determining sudden heat of passion pursuant to subsection (3)(b) of this section, a defendant's act does not constitute an act performed upon a sudden heat of passion if it results solely from the discovery of, knowledge about, or potential disclosure of the victim's actual or perceived gender, gender identity, gender expression, or sexual orientation, including but not limited to under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance toward the defendant.

18-3-104 Manslaughter

(1) A person commits the crime of manslaughter if:

(a) Such person recklessly causes the death of another person; or

(b) Such person intentionally causes or aids another person to commit suicide.

(2) Manslaughter is a class 4 felony.

(3) This section shall not apply to a person, including a proxy decision-maker as such person is described in section 15-18.5-103, C.R.S., who complies with any advance medical directive in accordance with the provisions of title 15, C.R.S., including a medical durable power of attorney, a living will, or a cardiopulmonary resuscitation (CPR) directive.

(4)

(a) This section shall not apply to a medical caregiver with prescriptive authority or authority to administer medication who prescribes or administers medication for palliative care to a terminally ill patient with the consent of the terminally ill patient or his or her agent.

18-3-105 Criminally Negligent Homicide

Any person who causes the death of another person by conduct amounting to criminal negligence commits criminally negligent homicide which is a class 5 felony.

18-3-106 Vehicular Homicide

(1)

(a) If a person operates or drives a motor vehicle in a reckless manner, and such conduct is the proximate cause of the death of another, such person commits vehicular homicide.

(b)

(I) If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and such conduct is the proximate cause of the death of another, such person commits vehicular homicide. This is a strict liability crime.

§ 187

(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
(b) [Makes clear that the mention of a fetus in (a) does not criminalize medical abortion.]

§ 188

(a) For purposes of Section 187, malice may be express or implied.

(1) Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature.
(2) Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
(3) Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.

(b) If it is shown that the killing resulted from an intentional act with express or implied malice, as defined in subdivision (a), no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite that awareness is included within the definition of malice. 

§ 189

(a) All murder that is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 287,288, or 289, or former Section 288a, or murder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.
(b) All other kinds of murders are of the second degree.

...

(d) To prove the killing was “deliberate and premeditated,” it is not necessary to prove the defendant maturely and meaningfully reflected upon the gravity of the defendant's act.
(e) A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven:

(1) The person was the actual killer.
(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.
(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.

(f) Subdivision (e) does not apply to a defendant when the victim is a peace officer who was killed while in the course of the peace officer's duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer's duties.

§ 192

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

(a) Voluntary--upon a sudden quarrel or heat of passion.

(b) Involuntary--in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.

(c) Vehicular--

(1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

(2) Driving a vehicle in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.

(3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This paragraph does not prevent prosecution of a defendant for the crime of murder.

(d) This section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to a felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

(e)

(1) “Gross negligence,” as used in this section, does not prohibit or preclude a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson (1981) 30 Cal.3d 290.  1

(2) “Gross negligence,” as used in this section, may include, based on the totality of the circumstances, any of the following:

(f)

(1) For purposes of determining sudden quarrel or heat of passion pursuant to subdivision (a), the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim's actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship. Nothing in this section shall preclude the jury from considering all relevant facts to determine whether the defendant was in fact provoked for purposes of establishing subjective provocation.

(2) For purposes of this subdivision, “gender” includes a person's gender identity and gender-related appearance and behavior regardless of whether that appearance or behavior is associated with the person's gender as determined at birth.

§ 210.1. Criminal Homicide.

(1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being.

(2) Criminal homicide is murder, manslaughter or negligent homicide.

§ 210.2. Murder.

(1) Except as provided in Section 210.3(1 )(b), criminal homicide constitutes murder when:

(a) it is committed purposely or knowingly; or

(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.

(2) Murder is a felony of the first degree [but a person convicted of murder may be sentenced to death, as provided in Section 210.6].

§ 210.3. Manslaughter.

(1) Criminal homicide constitutes manslaughter when:

(a) it is committed recklessly; or

(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.

(2) Manslaughter is a felony of the second degree.

§ 210.4. Negligent Homicide.

(1) Criminal homicide constitutes negligent homicide when it is committed negligently.

(2) Negligent homicide is a felony of the third degree.

Maestas v. People

Supreme Court of Colorado

11 P.2d 227 (Colo. 1932)

Joe Maestas was found guilty of murder of the first degree and his punishment fixed at death. He prosecutes this writ assigning as error the insufficiency of the evidence to sustain the verdict.

The facts are substantially as follows: Ben Addis, a registered pharmacist, was, on September 9, 1931, engaged as a salesman, and he, together with his sister, Mrs. Millie Freeman, were traveling in an automobile to the San Luis Valley for the purpose of soliciting orders from merchants there. They arrived at Fort Garland, Costilla County, Colo., at about 10 o'clock on the evening of September 9, 1931, to find that the merchant there, upon whom they desired to call, had closed his place of business; they decided to spend the night there, sleeping in their car, and transact their business in the morning. They parked their car on vacant property near the roadside, closed their windows, locked their car doors, and, after they had been asleep for about two hours, Mrs. Freeman was awakened by defendant and one Fernandez attempting to open the car door on Mrs. Freeman's side. Mrs. Freeman awakened her brother, who asked defendant and Fernandez what they wanted, whereupon Fernandez disappeared, and defendant went to Addis' side of the car and, with curses, demanded that he open the window. Addis, in turn, demanded who defendant was, and was answered ‘that didn't make any difference who I am,’ and defendant again demanded that the window be opened, and asked for some identification card, which Addis gave him through the window, opened wide enough to pass out a card, but not sufficiently wide to allow defendant to push his hand through, as he attempted to do. After defendant had the identification card which Addis gave him, he complained that he could not read it in the darkness, and Addis suggested that if defendant would go to the front of the car, he (Addis) would turn on the lights. Defendant did as was suggested and Addis turned on the lights, and while defendant was apparently reading the card, Addis started the engine and attempted to back the car towards Fort Garland. Defendant got on the bumper, and eventually on the running board, and from there broke the window glass on Addis' side of the car with his fist. In the meanwhile, the car was brought to a stop, and while Addis was attempting to put defendant off the running board, Mrs. Freeman got out of the car and ran towards Fort Garland for assistance, whereupon defendant ran after her, and when about to grab her, she eluded him and ran back to her brother, who was then standing near the rear of the car. Defendant then disappeared for a short time, leaving Addis and his sister standing near the car, when he suddenly reappeared, and immediately fired several shots from an automatic pistol at Addis, inflicting wounds, from the effects of which Addis died the next day in a hospital at Alamosa.

Defendant was indigent, and counsel who represented him at the trial, and also here, was appointed by the court to defend him.

The information charged that defendant and Fernandez “did then and there feloniously, wilfully and of their malice aforethought kill and murder.” At the conclusion of all the evidence, a motion for a directed verdict of not guilty was granted, as to defendant Fernandez, and a verdict of guilty returned by the jury, as to the defendant here.

No objection was made to any of the instructions given by the court, and no tendered instruction was refused. Counsel for defendant states in his brief: “We shall present our argument under one general head and the point we wish to emphasize is that the evidence in this case failed to show ‘deliberate and premeditated design’ on the part of the defendant, Maestas, to kill at the time he fired the fatal shots that caused the death of Addis, and therefore, he is not guilty of murder in the first degree.”

The jurors were instructed upon the question of premeditation and deliberation, and we assume that in their deliberation, they followed the law as given them. In Van Houton v. People, 22 Colo. 53, 66 we held: "In this case the proof must establish deliberation and premeditation to support the verdict. Time, however, is not essential if there was a design and determination to kill formed in the mind of the defendant previous to or at the time the mortal wound was given. It matters not how short the interval, if it was sufficient for one thought to follow another, and the defendant actually formed the design to kill, and deliberated and premeditated upon such design before firing the fatal shot, this was sufficient to raise the crime to the highest grade known to the law ... Under these acts premeditation and deliberation are the subject of inference and presumption to be drawn by the jury from the facts and circumstances leading up to, surrounding, and explanatory of the homicide.’ Van Houton, supra, has been cited with approval on this point a number of times, and as recently as Robinson v. People, 76 Colo. 416 The rule announced therein states a correct principle of law, and is one of almost universal acceptation.  There was ample evidence from which the jury might well find deliberation and premeditation.

Maestas was ably defended and his every right, both here and below, safeguarded by his counsel, who prosecutes this writ without compensation, save such as an attorney derives from the consciousness of a duty faithfully discharged, when called upon by the court, whose officer he is, to champion the cause of a penniless criminal. Maestas was guilty beyond a question of a doubt; his conviction was without prejudicial error, and our duty to affirm the judgment is clear.

The judgment is accordingly affirmed, and it is further ordered that it be executed during the week ending May 28, 1932.

Commonwealth v. Carroll

Pennsylvania Supreme Court

194 A.2d 911 (Penn. 1963)

OPINION BY MR. CHIEF JUSTICE BELL, November 12, 1963:

The defendant, Carroll, pleaded guilty generally to an indictment charging him with the murder of his wife, and was tried by a Judge without a jury. That Court found him guilty of first degree murder and sentenced him to life imprisonment. Following argument and denial of motions in arrest of judgment and for a new trial, defendant took this appeal.

The defendant married the deceased in 1955, when he was serving in the Army in California. Subsequently he was stationed in Alabama, and later in Greenland. During the latter tour of duty, defendant's wife and two children lived with his parents in New Jersey. Because this arrangement proved incompatible, defendant returned to the United States on emergency leave in order to move his family to their own quarters. On his wife's insistence, defendant was forced first to secure a "compassionate transfer" back to the States, and subsequently to resign from the Army in July of 1960, by which time he had attained the rank of Chief Warrant Officer. Defendant was a hard worker, earned a substantial salary and bore a very good reputation among his neighbors.

In 1958, decedent-wife suffered a fractured skull while attempting to leave defendant's car in the course of an argument. Allegedly this contributed to her mental disorder which was later diagnosed as a schizoid personality type. In 1959 she underwent psychiatric treatment at the mental hygiene clinic in Aberdeen, Maryland. She complained of nervousness and told the examining doctor "I feel like hurting my children." This sentiment sometimes took the form of sadistic "discipline" toward their very young children. Nevertheless, upon her discharge from the clinic, the doctors considered her much improved. With this background we come to the immediate events of the crime.

In January, 1962, defendant was selected to attend an electronics school in Winston-Salem, North Carolina, for nine days. His wife greeted this news with violent argument. Immediately prior to his departure for Winston-Salem, at the suggestion and request of his wife, he put a loaded .22 calibre pistol on the window sill at the head of their common bed, so that she would feel safe. On the evening of January 16, 1962, defendant returned home and told his wife that he had been temporarily assigned to teach at a school in Chambersburg, which would necessitate his absence from home four nights out of seven for a ten-week period. A violent and protracted argument ensued at the dinner table and continued until four o'clock in the morning.

Defendant's own statement after his arrest details the final moments before the crime:

We went into the bedroom a little before 3 o'clock on Wednesday morning where we continued to argue in short bursts. Generally she laid with her back to me facing the wall in bed and would just talk over her shoulder to me. I became angry and more angry especially what she was saying about my kids and myself, and sometime between 3 and 4 o'clock in the morning I remembered the gun on the window sill over my head. I think she had dozed off. I reached up and grabbed the pistol and brought it down and shot her twice in the back of the head.[2]

Defendant's testimony at the trial elaborated this theme. He started to think about the children:

[S]eeing my older son's feet what happened to them. I could see the bruises on him and Michael's chin was split open, four stitches. I didn't know what to do. I wanted to help my boys. Sometime in there she said something in there, she called me some kind of name. I kept thinking of this. During this time I either thought or felt — I thought of the gun, just thought of the gun. I am not sure whether I felt my hand move toward the gun — I saw my hand move, the next thing — the only thing I can recollect after that is right after the shots or right during the shots I saw the gun in my hand just pointed at my wife's head. She was still lying on her back — mean her side. I could smell the gunpowder and I could hear something — it sounded like running water. I didn't know what it was at first, didn't realize what I'd done at first. Then I smelled it. I smelled blood before...

Q. At the time you shot her, Donald, were you fully aware and intend to do what you did?

A. I don't know positively. All I remember hearing was two shots and feeling myself go cold all of a sudden.

Shortly thereafter defendant wrapped his wife's body in a blanket, spread, and sheets, tied them on with a piece of plastic clothesline, and took her down to the cellar. He tried to clean up as well as he could. That night he took his wife's body, wrapped in a blanket with a rug over it to a desolate place near a trash dump. He then took the children to his parents' home in Magnolia, New Jersey. He was arrested the next Monday in Chambersburg where he had gone to his teaching assignment.

The applicable principles of law are well settled, but because they are so frequently misunderstood or misapplied or overlooked, we deem it wise to restate them. Many of them are set forth and reaffirmed in Commonwealth v. Gooslin, 410 Pa. 285, 189 A.2d 157, where the Court said (pages 286, 288, 289):

Murder . . . is defined as an unlawful killing of another with malice aforethought, express or implied." The legislature divided murder into two classifications, murder in the first degree and murder in the second degree; and provided that (1) all murder perpetrated by poison or lying in wait; or by any other kind of wilful, deliberate [and] premeditated killing, or any murder which shall be committed in the perpetration of or attempt to perpetrate certain specified felonies [arson, rape, robbery, burglary, or kidnapping], is murder in the first degree and (2) every other kind of murder is murder in the second degree: Act of June 24, 1939.

Malice express or implied is [the hallmark] the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances. Malice is present if the defendant had an intent to do the deceased serious bodily harm.

The specific intent to kill which is necessary to constitute in a nonfelony murder, murder in the first degree, may be found from a defendant's words or conduct or from the attendant circumstances together with all reasonable inferences therefrom, and may be inferred from the intentional use of a deadly weapon on a vital part of the body of another human being.

If we consider only the evidence which is favorable to the Commonwealth, it is without the slightest doubt sufficient in law to prove first degree. However, even if we believe all of defendant's statements and testimony, there is no doubt that this killing constituted murder in the first degree. Defendant first urges that there was insufficient time for premeditation in the light of his good reputation. This is based on an isolated and oft repeated statement in Commonwealth v. Drum, 58 Pa. 9, 16, that " 'no time is too short for a wicked man to frame in his mind his scheme of murder.' " Defendant argues that, conversely, a long time is necessary to find premeditation in a "good man." We find no merit in defendant's analogy or contention. As Chief Justice MAXEY appropriately and correctly said in Commonwealth v. Earnest, 342 Pa. 544, 21 A.2d 38 (pages 549-550): "Whether the intention to kill and the killing, that is, the premeditation and the fatal act, were within a brief space of time or a long space of time is immaterial if the killing was in fact intentional, willful, deliberate and premeditated. . . . As Justice AGNEW said in Com. v. Drum: '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.' "

Defendant further contends that the time and place of the crime, the enormous difficulty of removing and concealing the body, and the obvious lack of an escape plan, militate against and make a finding of premeditation legally impossible. This is a "jury argument"; it is clear as crystal that such circumstances do not negate premeditation. This contention of defendant is likewise clearly devoid of merit.

Defendant's most earnestly pressed contention is that the psychiatrist's opinion of what defendant's state of mind must have been and was at the time of the crime, clearly establishes not only the lack but also the legal impossibility of premeditation. Dr. Davis, a psychiatrist of the Allegheny County Behavior Clinic, testified that defendant was

. . . for a number of years . . . passively going along with a situation which he . . . [was] not controlling and he . . . [was] not making any decisions, and finally a decision . . . [was] forced on him . . . . He had left the military to take this assignment, and he was averaging about nine thousand a year; he had a good job. He knew that if he didn't accept this teaching assignment in all probability he would be dismissed from the Government service, and at his age and his special training he didn't know whether he would be able to find employment. More critical to that was the fact that at this point, as we understand it, his wife issued an ultimatum that if he went and gave this training course she would leave him . . . . He was so dependent upon her he didn't want her to leave. He couldn't make up his mind what to do. He was trapped. . .

The doctor then gave his opinion that "rage", "desperation", and "panic" produced

an impulsive automatic reflex type of homicide, . . . as opposed to an intentional premeditated type of homicide. . . . Our feeling was that if this gun had fallen to the floor he wouldn't have been able to pick it up and consummate that homicide. And I think if he had to load the gun he wouldn't have done it. This is a matter of opinion, but this is our opinion about it.

There are three answers to this contention. First, as we have hereinbefore stated, neither a Judge nor a jury has to believe all or any part of the testimony of the defendant or of any witness. Secondly, the opinion of the psychiatrists was based to a large extent upon statements made to them by the defendant, which need not be believed and which are in some instances opposed by the facts themselves. Thirdly, a psychiatrist's opinion of a defendant's impulse or lack of intent or state of mind is, in this class of case, entitled to very little weight, and this is especially so when defendant's own actions, or his testimony or confession, or the facts themselves, belie the opinion.

Defendant's own statement after his arrest, upon which his counsel so strongly relies, as well as his testimony at his trial, clearly convict him of first degree murder and justify the finding and sentence of the Court below. Defendant himself described his actions at the time he killed his wife. From his own statements and from his own testimony, it is clear that, terribly provoked by his allegedly nagging, belligerent and sadistic wife, defendant remembered the gun, deliberately took it down, and deliberately fired two shots into the head of his sleeping wife. There is no doubt that this was a wilful, deliberate, and premeditated murder.

While this picture of his wife is different from that depicted by her neighbors, if defendant's version is true, the remedy lies in a commutation by the Board of Pardons and not by a disregard of the law by the Courts.

While defendant makes no contention that he was insane at the commission of the murder or at any time, what this Court said in Commonwealth v. Tyrrell, 405 Pa. is equally appropriate here:

Defendant's psychiatrist did not testify that the defendant was insane. What he did say was that because defendant's wife frequently picked on him and just before the killing insulted or goaded him, defendant had an emotional impulse to kill her which he could not resist.

. . . society would be almost completely unprotected from criminals if the law permitted a blind or irresistible impulse or inability to control one's self, to excuse or justify a murder or to reduce it from first degree to second degree. In the times in which we are living nearly every normal adult human being has moments or hours or days or longer periods when he or she is depressed and disturbed with resultant emotional upset feelings and so-called blind impulses; and the young especially have many uncontrolled emotions every day which are euphemistically called irresistible impulses. The Courts of Justice should not abdicate their function and duty of determining criminal responsibility to the psychiatrist. In such event, the test will differ not only with each psychiatrist but also with the prevailing psychiatric winds of the moment.

Just as the Courts cannot abdicate to the psychiatrists the task of determining criminal responsibility in law, so also they cannot remit to psychiatrists the right to determine the intent or the state of mind of an accused at the time of the commission of a homicide.

Judgment and sentence affirmed.

People v. Morrin,
31 Mich.App. 301 (Court of Appeals, 1971)

First-degree murder is a statutory offense. It is the common-law offense of murder (homicide committed with “malice aforethought) with an added element: “All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.” M.C.L.A. s 750.316 (Stat.Ann.1954 Rev. s 28.548).

We turn to the question of whether the people proved that the murder of William Abell was committed with deliberation and premeditation. The connotative similarities between the words “aforethought” and “premeditation” have confused many courts; malice aforethought and premeditation are not, in legal terminology, synonymous. Malice aforethought is a term of art firmly rooted in the common law. Premeditation and deliberation are legislative offspring and are to be construed in the light of the statutory scheme.

At common law all murders were punishable by death. The severity of this rule led Pennsylvania to enact, in 1794, the first statute dividing murder into degrees. The Pennsylvania statute defined first-degree murder as a killing committed willfully and with premeditation and deliberation and classified “all other kinds of murder” as second-degree murder. Only first-degree murder was punishable by death.
Michigan adopted the Pennsylvania statute verbatim by 1838. At one time all but ten States had similar statutes. 

As noted above, the division of murder into degrees was prompted by a feeling that not all murders reflected the same quantum of culpability on the part of the wrongdoer. Conviction of first-degree murder carries an automatic sentence of life imprisonment without possibility of parole, while second-degree murder is punishable by imprisonment for life or for any terms of years and the offender is parolable.

Decisions of the Michigan Supreme Court have, from the beginning, acknowledged that first-degree murder is a “more atrocious” crime than its second-degree counterpart. In 1876, the Michigan Supreme Court observed: “It was rightly considered that what is done against life deliberately indicates a much more depraved character and purpose than what is done hastily or without contrivance.” Nye v. People (1876), 35 Mich. 16, 19.

The clarity of the policy underlying the statutory division of murder into degrees contrasts sharply with the lack of precise standards for determining what constitutes premeditation and deliberation sufficient to establish first-degree murder. Since premeditation and deliberation are all that distinguish first-degree from second-degree murder, imprecise definition of these elements tends to erode the distinction between the two offenses.

A number of jurisdictions have all but obliterated this distinction by observing the rule that premeditation and deliberation need precede the homicidal act only momentarily. (This is probably the result of the mistaken assumption that malice Aforethought means with ‘premeditation’ and the unthinking adoption of the cases which long before the statutory grading of murder into two degrees had held that premeditation was not required to establish malice aforethought.) The rule prevalent in those jurisdictions grants the jury an unstructured discretion to find premeditation and deliberation in any murder case.

Michigan adheres to a more meaningful standard. Nye v. People, Supra, struck down a jury instruction that a willful, deliberate design to take life ‘might be formed an instant before the act.’ The Court ruled that ‘it is a perversion of terms to apply the term deliberate to any act which is done on a sudden impulse.’ In Nye the homicide occurred in a sudden affray; the Supreme Court held that there was no testimony whatever upon which a verdict of murder in the first degree could properly have been rendered.

Aside from the language of Nye, the Michigan cases do not attempt to define premeditation and deliberation with any specificity. Lack of suitable definitions, however, has not prevented the Michigan Supreme Court from insisting upon strict observance of the premeditation-deliberation requirement. The Court has repeatedly reversed first-degree murder convictions in which the evidence did not support an inference of premeditation and deliberation. 

The real focus of first-degree murder jurisprudence in Michigan has been on the kind of evidence which permits an inference of premeditation and deliberation. To some extent this approach has minimized the need for functional definitions of premeditation and deliberation. Since the distinguishing elements of first-degree murder ultimately resolve themselves into questions of fact, minimum standards of proof, if reasonably related to the circumstances which must be proved, will serve to preserve the distinction between first-degree and second-degree murder.
Our concern with maintaining the distinction between degrees of murder reflects a growing insistence by many courts that first-degree and second-degree murder be clearly differentiated. Such differentiation furthers the statutory objectives, of course. Yet it serves a more fundamental purpose by insuring that murder prosecutions do not violate fundamental due process.

First-degree and second-degree murder are separate offenses, carrying vastly different penalties, distinguished only by the requirement that a homicide punishable as first-degree murder be committed with premeditation and deliberation. If premeditation and deliberation are ill-defined, the jury is left with no objective standards upon which to base its verdict. Convictions of the two offenses will be distributed not on the basis of ascertainable criteria, but entirely as products of the subjective, wholly individualistic determinations of different juries.
The United States Supreme Court has frequently ruled that juries cannot be permitted to determine criminal liability without a reasonably ascertainable standard of guilt. Absent such standards, the jury has the sort of naked and arbitrary power which is inconsistent with due process.

Accordingly, it underscores the difference between the statutory degrees of murder to emphasize that premeditation and deliberation must be given independent meaning in a prosecution for first-degree murder. The ordinary meaning of the terms will suffice. To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a “second look.” 

This interpretation of premeditation and deliberation in no way departs from existing Michigan law. Time and again the Michigan Supreme Court has reversed convictions where the evidence of premeditation and deliberation was insufficient to warrant submission of a charge of first-degree murder to the jury. In each case, the homicide occurred during an affray whose nature would not permit cool and orderly reflection. 

To decide whether Morrin's conviction may stand in the case before us, we must determine if the prosecution met its burden of proving premeditation and deliberation. Since these are subjective factors, usually incapable of direct proof, they may be established by inference from all the facts of the case.  The question is whether the evidence introduced at the trial fairly supports an inference of premeditation and deliberation.

There is abundant case law on the kinds of evidence from which premeditation and deliberation may be inferred. Having examined the law we conclude that here there was insufficient evidence to support the requisite inference. Here there was no prior relationship between the parties that would tend to show a motive. The murder weapon was not acquired or positioned in preparation for homicide. There is nothing in the record which would support an inference that Morrin transported [the victim] to the secluded location for an illicit or criminal purpose. The circumstances of the killing itself and the events preceding it were equivocal, as consistent with the absence as with the presence of premeditation and deliberation. Morrin's conduct subsequent to the assault, while it perhaps reflected consciousness of guilt, was neither coherent nor organized enough to suggest it occupied a place in a scheme or plan deliberated and premeditated upon before the homicide.

While those states that have retained premeditation and deliberation as a dividing line between first and second degree murder genreally agree on the meaning of those terms, they disagree -- as Carroll and the excerpt from Morrin indicate -- regarding how to explain those terms to a jury. Can premeditation happen in an instant, or must there be a discernable passage of time between the formation of the decision to kill and the killing? What evidence will suffice to show that premeditation occurred? Was such evidence present in Maestas? In Carroll?

As the Michigan court reminds us in Morrin, the original reason for the division of murder into degrees was to reserve severe punishments (originally death) for those cases in which it was most deserving. Does premeditation and deliberation do that work today? Consider the next case in that context.

Note on People v. Anderson, 447 P.2d 942 (Cal. 1968)

The horrific facts of the case were as follows:[1]

When the police arrived at 7 p.m. the shades were down on all the windows and the doors were locked. Defendant finally opened the front door for one of the officers who arrested and handcuffed defendant. The arresting officer testified that defendant was wearing slacks, no shirt or shoes, and that there was no blood on him.

The arresting officer found Victoria's body on the floor near her bed. He found defendant's blood-spotted shorts on a chair in the living room, and a knife and defendant's socks, with blood encrusted on the soles, in the master bedroom. The evidence established that the victim's torn and bloodstained dress had been ripped from her, that her clothes, including her panties out of which the crotch had been ripped, were found in various rooms of the house, that there were bloody footprints matching the size of the victim's leading from the master bedroom to Victoria's room, and that there was blood in almost every room including the kitchen, the floor of which appeared to have been mopped.

The TV cameraman who covered the murder story for channel 11, the officer who drove defendant to the police station, and the officer who "observed" defendant for four hours at the station the night of December 7, 1962, all testified that defendant did not appear intoxicated. The officers who talked to defendant testified, however, that they smelled alcohol on his breath; a blood test taken at 7:45 p.m. indicated that the alcohol content in defendant's blood was .34 percent, which was more than necessary for an automobile driver to be classified as "under the influence."

Over 60 wounds, both severe and superficial, were found on Victoria's body. The cuts extended over her entire body. Several of the wounds … were post mortem.

Defendant was convicted of first degree murder and sentenced to death. He argued that the evidence presented at trial was insufficient to support a first degree murder conviction and the State Supreme Court agreed.

Given the presumption that an unjustified killing of a human being constitutes murder of the second, rather than of the first, degree, and the clear legislative intention to differentiate between first and second degree murder, we must determine in any case of circumstantial evidence whether the proof is such as will furnish a reasonable foundation for an inference of premeditation and deliberation, or whether it "leaves only to conjecture and surmise the conclusion that defendant either arrived at or carried out the intention to kill as the result of a concurrence of deliberation and premeditation."

Thus we have held that in order for a killing with malice aforethought to be first rather than second degree murder, "'[t]he intent to kill must be ... formed upon a pre-existing reflection,' ... [and have] been the subject of actual deliberation or forethought ...." We have therefore held that "[a] verdict of murder in the first degree ... [on a theory of a wilful, deliberate, and premeditated killing] is proper only if the slayer killed 'as a result of careful thought and weighing of considerations; as a deliberate judgment or plan; carried on cooly and steadily, [especially] according to a preconceived design.'

The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing--what may be characterized as "planning" activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of "a pre-existing reflection" and "careful thought and weighing of considerations" rather than "mere unconsidered or rash impulse hastily executed"; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victim's life in a particular way for a "reason" which the jury can reasonably infer from facts of type (1) or (2).

Applying this standard to the facts of Anderson, the Court was unable to find sufficient facts from which a jury could conclude that Anderson premeditated the killing. The Court concluded that the brutal and senseless nature of the killing showed an absence of the kinds of facts necessary to demonstrate motive, planning, or preconceived design.

Official Comment to MPC § 210.6

Prior reflection may reveal the uncertainties of a tortured conscience rather than exceptional depravity. The very fact of a long internal struggle may be evidence that the homicidal impulse was deeply aberrational and far more the product of extraordinary circumstances than a true reflection of the actor’s normal character Thus, for example, one suspects that most mercy killings are the consequence of long and careful deliberation, but they are not especially appropriate cases for imposition of capital punishment.

It also seems clear, moreover, that some purely impulsive murders will present no extenuating circumstance. The suddenness of the killing may simply reveal callousness so complete and depravity so extreme that no hesitation is required.

Girouard v. State

Court of Appeals of Maryland

538 A.2d 718 (Md. App. 1991)

COLE, Judge.

In this case we are asked to reconsider whether the types of provocation sufficient to mitigate the crime of manslaughter should be limited to the categories we have heretofore recognized, or whether the sufficiency of the provocation should be decided by the factfinder on a case-by-case basis. Specifically, we must determine whether words alone are provocation adequate to justify a conviction of manslaughter rather than one of second degree murder.

The Petitioner, Steven S. Girouard, and the deceased, Joyce M. Girouard, had been married for about two months on October 28, 1987, the night of Joyce's death. Both parties, who met while working in the same building, were in the army. They married after having known each other for approximately three months. The evidence at trial indicated that the marriage was often tense and strained, and there was some evidence that after marrying Steven, Joyce had resumed a relationship with her old boyfriend, Wayne.

On the night of Joyce's death, Steven overheard her talking on the telephone to her friend, whereupon she told the friend that she had asked her first sergeant for a hardship discharge because her husband did not love her anymore. Steven went into the living room where Joyce was on the phone and asked her what she meant by her comments; she responded, "nothing." Angered by her lack of response, Steven kicked away the plate of food Joyce had in front of her. He then went to lie down in the bedroom.

Joyce followed him into the bedroom, stepped up onto the bed and onto Steven's back, pulled his hair and said, "What are you going to do, hit me?" She continued to taunt him by saying, "I never did want to marry you and you are a lousy fuck and you remind me of my dad." The barrage of insults continued with her telling Steven that she wanted a divorce, that the marriage had been a mistake and that she had never wanted to marry him. She also told him she had seen his commanding officer and filed charges against him for abuse. She then asked Steven, "What are you going to do?” Receiving no response, she continued her attack. She added that she had filed charges against him in the Judge Advocate General's Office (JAG) and that he would probably be court martialed.

When she was through, Steven asked her if she had really done all those things, and she responded in the affirmative. He left the bedroom with his pillow in his arms and proceeded to the kitchen where he procured a long-handled kitchen knife. He returned to Joyce in the bedroom with the knife behind the pillow. He testified that he was enraged and that he kept waiting for Joyce to say she was kidding, but Joyce continued talking. She said she had learned a lot from the marriage and that it had been a mistake. She also told him she would remain in their apartment after he moved out. When he questioned how she would afford it, she told him she would claim her brain-damaged sister as a dependent and have the sister move in. Joyce reiterated that the marriage was a mistake, that she did not love him and that the divorce would be better for her.

After pausing for a moment, Joyce asked what Steven was going to do. What he did was lunge at her with the kitchen knife he had hidden behind the pillow and stab her 19 times. Realizing what he had done, he dropped the knife and went to the bathroom to shower off Joyce's blood.  Feeling like he wanted to die, Steven went back to the kitchen and found two steak knives with which he slit his own wrists. He lay down on the bed waiting to die, but when he realized that he would not die from his self-inflicted wounds, he got up and called the police, telling the dispatcher that he had just murdered his wife.

When the police arrived they found Steven wandering around outside his apartment building. Steven was despondent and tearful and seemed detached, according to police officers who had been at the scene. He was unconcerned about his own wounds, talking only about how he loved his wife and how he could not believe what he had done. Joyce Girouard was pronounced dead at the scene.

At trial, defense witness, psychologist, Dr. William Stejskal, testified that Steven was out of touch with his own capacity to experience anger or express hostility. He stated that the events of October 28, 1987, were entirely consistent with Steven's personality, that Steven had “basically reach[ed] the limit of his ability to swallow his anger, to rationalize his wife's behavior, to tolerate, or actually to remain in a passive mode with that. He essentially went over the limit of his ability to bottle up those emotions. What ensued was a very extreme explosion of rage that was intermingled with a great deal of panic.” Another defense witness, psychiatrist, Thomas Goldman, testified that Joyce had a “compulsive need to provoke jealousy so that she's always asking for love and at the same time destroying and undermining any chance that she really might have to establish any kind of mature love with anybody.”

Steven Girouard was convicted, at a court trial in the Circuit Court for Montgomery County, of second degree murder and was sentenced to 22 years incarceration, 10 of which were suspended. Upon his release, Petitioner is to be on probation for five years, two years supervised and three years unsupervised. The Court of Special Appeals affirmed the judgment of the circuit court in an unreported opinion. We granted certiorari to determine whether the circumstances of the case presented provocation adequate to mitigate the second degree murder charge to manslaughter.

Petitioner relies primarily on out of state cases to provide support for his argument that the provocation to mitigate murder to manslaughter should not be limited only to the traditional circumstances of extreme assault or battery upon the defendant; mutual combat; defendant's illegal arrest; injury or serious abuse of a close relative of the defendant’s or the sudden discovery of a spouse's adultery. Petitioner argues that manslaughter is a catchall for homicides which are criminal but that lack the malice essential for a conviction of murder. Steven argues that the trial judge did find provocation (although he held it inadequate to mitigate murder) and that the categories of provocation adequate to mitigate should be broadened to include factual situations such as this one.

The State counters by stating that although there is no list of legally adequate provocations, the common law developed to a point at which it may be said there are some concededly provocative acts that society is not prepared to recognize as reasonable. Words spoken by the victim, no matter how abusive or taunting, fall into a category society should not accept as adequate provocation.

According to the State, if abusive words alone could mitigate murder to manslaughter, nearly every domestic argument ending in the death of one party could be mitigated to manslaughter. This, the State avers, is not an acceptable outcome. Thus, the State argues that the courts below were correct in holding that the taunting words by Joyce Girouard were not provocation adequate to reduce Steven’s second degree murder charge to voluntary manslaughter.

Initially, we note that the difference between murder and manslaughter is the presence or absence of malice. Voluntary manslaughter has been defined as "an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool” (emphasis in original).

There are certain facts that may mitigate what would normally be murder to manslaughter. For example, we have recognized as falling into that group: (1) discovering one's spouse in the act of sexual intercourse with another; (2) mutual combat; (3) assault and battery. There is also authority recognizing injury to one of the defendant's relatives or to a third party, and death resulting from resistance of an illegal arrest as adequate provocation for mitigation to manslaughter. Those acts mitigate homicide to manslaughter because they create passion in the defendant and are not considered the product of free will.

In order to determine whether murder should be mitigated to manslaughter we look to the circumstances surrounding the homicide and try to discover if it was provoked by the victim. Over the facts of the case we lay the template of the so-called “Rule of Provocation.” The courts of this State have repeatedly set forth the requirements of the Rule of Provocation:

1. There must have been adequate provocation;
2. The killing must have been in the heat of passion;
3. It must have been a sudden heat of passion—that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;
4. There must have been causal connection between the provocation, the passion, and the fatal act.

We shall assume without deciding that the second, third, and fourth of the criteria listed above were met in this case. We focus our attention on an examination of the ultimate issue in this case, that is, whether the provocation of Steven by Joyce was enough in the eyes of the law so that the murder charge against Steven should have been mitigated to voluntary manslaughter. For provocation to be "adequate," it must be “'calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.’” The issue we must resolve, then, is whether the taunting words by Joyce were enough to inflame the passion of a reasonable man so that that man would be sufficiently infuriated so as to strike out in hot-blooded blind passion to kill her.  Although we agree with the trial judge that there was needless provocation by Joyce, we also agree with him that the provocation was not adequate to mitigate second degree murder to voluntary manslaughter.

Although there are few Maryland cases discussing the issue at bar, those that do hold that words alone are not adequate provocation. Most recently, in Sims v. State, 319 Md. 540, 573 A.2d 1317, we held that "[i]nsulting words or gestures, no matter how opprobrious, do not amount to an affray and standing alone, do not constitute adequate provocation.” That case involved the flinging of racial slurs and derogatory comments by the victim at the defendant. That conduct did not constitute adequate provocation.

In Lang v. State, 6 Md.App. 128 (1969), the Court of Special Appeals stated that it is “generally held that mere words, threats, menaces or gestures, however offensive and insulting, do not constitute adequate provocation." Before the shooting, the victim had called the appellant "a chump" and “a chicken," dared the appellant to fight, shouted obscenities at him and shook his fist at him. Id. The provocation, again, was not enough to mitigate murder.

The court, in Lang, did note, however, that words can constitute adequate provocation if they are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm. Clearly, no such conduct was exhibited by Joyce in this case. While Joyce did step on Steven's back and pull his hair, he could not reasonably have feared bodily harm at her hands. This, to us, is certain based on Steven's testimony at trial that Joyce was about 5'1" tall and weighed 115 pounds, while he is 6’2” tall, weighing over 200 pounds. Joyce simply did not have the size or strength to cause Steven to fear for his bodily safety. Thus, since there was no ability on the part of Joyce to cause Steven harm, the words she hurled at him could not, under the analysis in Lang, constitute legally sufficient provocation.

Thus, with no reservation, we hold that the provocation in this case was not enough to cause a reasonable man to stab his provoker 19 times. Although a psychologist testified to Steven's mental problems and his need for acceptance and love, we agree with the Court of Special Appeals speaking through Judge Moylan that "there must be not simply provocation in psychological fact, but one of certain fairly well-defined classes of provocation recognized as being adequate as a matter of law." The standard is one of reasonableness; it does not and should not focus on the peculiar frailties of mind of the Petitioner. That standard of reasonableness has not been met here. We cannot in good conscience countenance holding that a verbal domestic argument ending in the death of one spouse can result in a conviction of manslaughter. We agree with the trial judge that social necessity dictates our holding. Domestic arguments easily escalate into furious fights. We perceive no reason for a holding in favor of those who find the easiest way to end a domestic dispute is by killing the spouse.

Maher v. People

Michigan Supreme Court

10 Mich. 212 (1862)

CHRISTIANCY, J.

The prisoner was charged with an assault with intent to kill and murder one Patrick Hunt. The evidence on the part of the prosecution was, that the prisoner entered the saloon of one Michael Foley, in the village of Houghton, where said Hunt was standing with several other persons; that prisoner entered through a back door and by a back way leading to it, in his shirt sleeves, in a state of great perspiration, and appearing to be excited; that as soon as the prisoner came up to where Hunt was standing, he fired a pistol at Hunt, the charge of which took effect upon the head of Hunt, in and through the left ear, causing a severe wound thereon; by reason of which Hunt in a few moments fell to the floor, was partially deprived of his sense of hearing in that ear, and received a severe shock to his system which caused him to be confined to his bed for about a week. The prisoner offered evidence tending to show an adulterous intercourse between his wife and Hunt on the morning of the assault, and within less than half an hour previous; that the prisoner saw them going into the woods together about half an hour before the assault; that on their coming out of the woods the prisoner followed them immediately (evidence having already been given that prisoner had followed them to the woods); that, on their coming out of the woods, the prisoner followed them and went after said Hunt into the saloon, where, on his arrival, the assault was committed; that the prisoner on his way to the saloon, a few minutes before entering it, was met by a friend who informed him that Hunt and the prisoner's wife had had sexual intercourse the day before in the woods- This evidence was rejected by the Court, and the prisoner excepted. Was the evidence properly rejected? This is the main question in the case, and its decision must depend upon the question whether the proposed evidence would have tended to reduce the killing—had death ensued—from murder to manslaughter? If the homicide—in case death had ensued — would have been but manslaughter, then defendant could not be guilty of the assault with intent to murder, but only of a simple assault and battery. The question therefore involves essentially the same principles as where evidence is offered for a similar purpose in a prosecution for murder; except that, in some cases of murder, an actual intention to kill need not exist; but in a prosecution for an assault with intent to murder, the actual intention to kill must be found, and that under circumstances which would make the killing murder.

To give the homicide the legal character of murder, all the authorities agree that it must have been perpetrated with malice prepense or aforethought. This malice is just as essential an ingredient of the offense as the act which causes the death. It is sufficient to say that, within the principle of all the recognized definitions, the homicide must, in all ordinary cases, have been committed with some degree of coolness and deliberation, or, at least, under circumstances in which ordinary men, or the average of men recognized as peaceable citizens, would not be liable to have their reason clouded or obscured by passion; and the act must be prompted by, or the circumstances indicate that it sprung from, a wicked, depraved or malignant mind .

But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter.

To what extent the passions must be aroused and the dominion of reason disturbed to reduce the offense from murder to manslaughter, the cases are by no means agreed; and any rule which should embrace all the cases that have been decided in reference to this point, would come very near obliterating, if it did not entirely obliterate, all distinction between murder and manslaughter in such cases. "We must therefore endeavor to discover the principle upon which the question is to be determined. It "will not do to hold that reason should be entirely dethroned, or overpowered by passion so as to destroy intelligent volition.” Such a degree of mental disturbance would be equivalent to utter insanity, and, if the result of adequate provocation, would render the perpetrator morally innocent. But the law regards manslaughter as a high grade of offense; as a felony. On principle, therefore, the extent to which the passions are required to be aroused and reason obscured must be considerably short of this, and never beyond that degree within which ordinary men have the power, and are therefore morally as well as legally bound, to restrain their passions. It is only on the idea of a violation of this clear duty, that the act can be held criminal.

The principle involved in the question, and which, I think, clearly deducible from the majority of well considered cases, would seem to suggest as the true general rule, that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment. To the question, what shall be considered in law a reasonable or adequate provocation for such a state of mind, so as to give to a homicide, committed under its influence, the character of manslaughter; on principle, the answer, as a general rule, must be, anything the natural tendency of which would be to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before them—not such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects follow from physical causes; for then the individual could hardly be held morally accountable. Nor, on the other hand, must the provocation, in every case, be held sufficient or reasonable, because such a state of excitement has followed from it; for then, by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men, and on account of that very wickedness of heart which, in itself, constitutes an aggravation both in morals and in law.

In determining whether the provocation is sufficient or reasonable, ordinary human nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard—unless, indeed, the person whose guilt is in question be shown to have some peculiar weakness of mind or infirmity of temper, not arising from wickedness of heart or cruelty of disposition. It is doubtless, in one sense, the province of the Court to define what, in law, will constitute a reasonable or adequate provocation, but not, I think, in ordinary cases, to determine whether the provocation proved in the particular case is sufficient or reasonable. This is essentially a question of fact, and to be decided with reference to the peculiar facts of each particular case. As a general rule, the Court, after informing the jury to what extent the passions must be aroused and reason obscured to render the homicide manslaughter, should inform them that the provocation must be one, the tendency of which would be to produce such a degree of excitement and disturbance in the minds of ordinary men; and if they should find such provocation from the facts proved, and should further find that it did produce that effect in the particular instance, and that the homicide was the result of such provocation, it would give it the character of manslaughter. Besides the consideration that the question is essentially one of fact, jurors, from the mode of their selection, coming from the various classes and occupations of society, and conversant with the practical affairs of life, are, in my opinion, much better qualified to judge of the sufficiency and tendency of a given provocation, and much more likely to fix, with some degree of accuracy the standard of what constitutes the average of ordinary human nature, than the Judge whose habits and course of life give him much less experience of the workings of passion in the actual conflicts of life.

The Judge, it is true, must, to some extent, assume to decide upon the sufficiency of the alleged provocation, when the question arises upon the admission of testimony; and when it is so clear as to admit of no reasonable doubt upon any theory, that the alleged provocation could not have had any tendency to produce such state of mind, in ordinary men, lie may properly exclude the evidence; but, if the alleged provocation be such as to admit of any reasonable doubt, whether it might not have had such tendency, it is much safer, I think, and more in accordance with principle, to let the evidence go to the jury under the proper instructions.

The same principles which govern, as to the extent to which the passions must be excited and reason disturbed, apply with equal force to the time during which its continuance may be recognized as a ground for mitigating the homicide to the degree of manslaughter, or, in other words, to the question of cooling time. This, like the provocation itself, must depend upon the nature of man and the laws of the human mind, as well as upon the nature and circumstances of the provocation, the extent to which the passions have been aroused, and the fact, whether the injury inflicted by the provocation is more or less permanent or irreparable. The passion excited by a blow received in a sudden quarrel, though perhaps equally violent for the moment, would be likely much sooner to subside than if aroused by a rape committed upon a sister or a daughter, or the discovery of an adulterous intercourse with a wife; and no two cases of the latter kind would be likely to be identical in all their circumstances of provocation. No precise time, therefore, in hours or minutes, can be laid down by the Court, as a rule of law, within which the passions must be held to have subsided and reason to have resumed its control, without setting at defiance the laws of man's nature, and ignoring the very principle on which provocation and passion are allowed to be shown, at all, in mitigation of the offense. it is a question of fact for the jury; and the Court cannot take it from the jury by assuming to decide it as a question of law, without confounding the respective provinces of the Court and jury: this question of reasonable cooling time was expressly held to be a question of fact for the jury.

It remains only to apply these principles to the present case. The proposed evidence, in connection with what had already been given, would have tended strongly to show the commission of adultery by Hunt with the prisoner's wife, within half an hour before the assault; that the prisoner saw them going to the woods together, under circumstances calculated strongly to impress upon his mind the belief of the adulterous purpose; that he followed after them to the woods; that Hunt and the prisoner's wife were, not long after, seen coming from the woods, and that the prisoner followed them, and went in hot pursuit after Hunt to the saloon, and was informed by a friend on the way that they had committed adultery the day before in the woods. I can not resist the conviction that this would have been sufficient evidence of provocation to go to the jury, and from which, when taken in connection with the excitement and "great perspiration" exhibited on entering the saloon, the hasty manner in which he approached and fired the pistol at Hunt, it would have been competent for the jury to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which, within the principle already explained, would have given to the homicide, had death ensued, the character of manslaughter only.

MARTIN C. J. and CAMPBELL J. concurred.

J. MANNING

I differ from my brethren in this case. I think the evidence was properly excluded. To make that manslaughter which would otherwise be murder, the provocation—I am not speaking of its sufficiency, but of the provocation itself— must be given in the presence of the person committing the homicide. The cause of the provocation must occur in his presence. More especially since the abolition of the death penalty for murder, and the division of the crime into murder in the first and second degree. There is not now the same reason, namely, the severity of the punishment, for relaxing the rules of law in favor of a party committing homicide as before. It would, it seems to me, be extremely mischievous to let passion engendered by suspicion, or by something one has heard, enter into and determine the nature of a crime committed while under its influence. The innocent as well as the guilty, or those who had not as well as those who had given provocation, might be the sufferers. If it be said that in such cases the giving of the provocation must be proved or it would go for nothing; the answer is, that the law will not, and should not permit the lives of the innocent to be exposed with the guilty in this way, as it would do did it not require the cause of the provocation to occur in the presence of the person committing the homicide.

I think the judgment should be affirmed.

Comment to Section 210.3

This formulation effects substantial changes in the traditional notion of provocation. For one thing, it does not require that the actor’s emotional distress arise from some injury, affront, or other provocative act perpetrated upon him by the deceased. Under the Code, mitigation may be appropriate where the actor believes that the deceased is responsible for some injustice to another or even where he strikes out in a blinding rage and kills an innocent bystander.

Section 210.3 also sweeps away the rigid rules that limited provocation to certain defined circumstances. Instead it casts the issue in phrases that have no common-law antecedents and hence no accumulated doctrinal content… This development reflects the trend of many modern decisions to abandon preconceived notions of what constitutes adequate provocation and to submit that question to the jury’s deliberation.

The critical element in the Model Code formulation is the clause requiring that reasonable be assessed “from the viewpoint of a person in the actor’s situation.” The word “situation” is designedly ambiguous. On the one hand, it is clear that personal handicaps and some external circumstances must be taken into account. Thus, blindness, shock from traumatic injury, and extreme grief are all easily read into the term “situation” This result is sound, for it would be morally obtuse to appraise a crime for mitigation of punishment without reference to these factors. On the other hand, it is equally plain that idiosyncratic moral values are not part of the actor’s situation. An assassin who kills a political leader because he believes it is right to do so cannot ask that he be judged by the standard of a reasonable extremist. Any other result would undermine the normative message of the criminal law. In between these two extremes, however, there are matters neither as clearly distinct from individual blameworthiness as blindness or handicap nor as integral a part of moral depravity as a belief in the rightness of killing.

People v. Casassa

Court of Appeals of New York

404 NE.2d 1310 (NY App. 1980)

JASEN, Judge.

On February 28, 1977, Victoria Lo Consolo was brutally murdered. Defendant Victor Casassa and Miss Lo Consolo had been acquainted for some time prior to the latter's tragic death. They met in August, 1976 as a result of their residence in the same apartment complex. Shortly thereafter, defendant asked Miss Lo Consolo to accompany him to a social function and she agreed. The two apparently dated casually on other occasions until November, 1976 when Miss Lo Consolo informed defendant that she was not "falling in love" with him. Defendant claims that Miss Lo Consolo's candid statement of her feelings "devastated him."

Miss Lo Consolo's rejection of defendant's advances also precipitated a bizarre series of actions on the part of defendant. Defendant, aware that Miss Lo Consolo maintained social relationships with others, broke into the apartment below Miss Lo Consolo's on several occasions to eavesdrop. These eavesdropping sessions allegedly caused him to be under great emotional stress. Thereafter, on one occasion, he broke into Miss Lo Consolo's apartment while she was out. Defendant took nothing, but, instead, observed the apartment, disrobed, and lay for a time in Miss Lo Consolo's bed. During this break-in, defendant was armed with a knife which, he later told police, he carried "because he knew that he was either going to hurt Victoria or Victoria was going to cause him to commit suicide."

Defendant's final visit to his victim's apartment occurred on February 28, 1977. Defendant brought several bottles of wine and liquor with him to offer as a gift. Upon Miss Lo Consolo's rejection of this offering, defendant produced a steak knife which he had brought with him, stabbed Miss Lo Consolo several times in the throat, dragged her body to the bathroom and submerged it in a bathtub full of water to "make sure she was dead."

The defendant did not contest the underlying facts of the crime. Instead, the sole issue presented to the trial court was whether the defendant, at the time of the killing, had acted under the influence of "extreme emotional disturbance". (Penal Law, § 125.25(1)(a).) The defense presented only one witness, a psychiatrist, who testified, in essence, that the defendant had become obsessed with Miss Lo Consolo and that the course which their relationship had taken, combined with several personality attributes peculiar to defendant, caused him to be under the influence of extreme emotional disturbance at the time of the killing.

In rebuttal, the People produced several witnesses. Among these witnesses was a psychiatrist who testified that although the defendant was emotionally disturbed, he was not under the influence of "extreme emotional disturbance" within the meaning of § 125.25(1)(a) of the Penal Law because his disturbed state was not the product of external factors but rather was "a stress he created from within himself, dealing mostly with a fantasy, a refusal to accept the reality of the situation."

The trial court in resolving this issue noted that extreme emotional disturbance may be based upon a series of events, rather than a single precipitating cause. In order to be entitled to the defense, the court held, a defendant must show that his reaction to such events was reasonable. In determining whether defendant's emotional reaction was reasonable, the court considered the appropriate test to be whether in the totality of the circumstances the finder of fact could understand how a person might have his reason overcome. Concluding that the test was not to be applied solely from the viewpoint of defendant, the court found that defendant's emotional reaction at the time of the commission of the crime was so peculiar to him that it could not be considered reasonable so as to reduce the conviction to manslaughter in the first degree. Accordingly, the trial court found defendant guilty of the crime of murder in the second degree. The Appellate Division affirmed, without opinion.

On this appeal defendant contends that the trial court erred in failing to afford him the benefit of the affirmative defense of "extreme emotional disturbance". It is argued that the defendant established that he suffered from a mental infirmity not arising to the level of insanity which disoriented his reason to the extent that his emotional reaction, from his own subjective point of view, was supported by a reasonable explanation or excuse. Defendant asserts that by refusing to apply a wholly subjective standard the trial court misconstrued section 125.25(1)(a) of the Penal Law. We cannot agree.

Section 125.25(1)(a) of the Penal Law provides that it is an affirmative defense to the crime of murder in the second degree where "[t]he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse." This defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although he is not free from responsibility for his crime, he ought to be punished less severely by reducing the crime upon conviction to manslaughter in the first degree.

In enacting section 125.25(1)(a) of the Penal Law, the Legislature adopted the language of the manslaughter provisions of the Model Penal Code (see § 201.3(1)(b)). The Model Penal Code formulation, however, as enacted by the Legislature, represented a significant departure from the prior law of this State.

The "extreme emotional disturbance" defense is an outgrowth of the "heat of passion" doctrine which had for some time been recognized by New York as a distinguishing factor between the crimes of manslaughter and murder.

For example, the "heat of passion" doctrine required that a defendant's action be undertaken as a response to some provocation which prevented him from reflecting upon his actions. Moreover, such reaction had to be immediate. The existence of a "cooling off" period completely negated any mitigating effect which the provocation might otherwise have had.

The thrust of defendant's claim, however, concerns a question arising out of another perceived distinction between "heat of passion" and "extreme emotional disturbance," to wit: whether, assuming that the defense is applicable to a broader range of circumstances, the standard by which the reasonableness of defendant's emotional reaction is to be tested must be an entirely subjective one.

Section 125.25(1)(a) of the Penal Law states it is an affirmative defense to the crime of murder that "[t]he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be." Whether the language of this statute requires a completely subjective evaluation of reasonableness is a question that has never been decided by this court, although it has been raised in our lower courts with diverse results.

Consideration of the Comments to the Model Penal Code, from which the New York statute was drawn, are instructive. Model Penal Code, § 201.3, Comment (Tent Draft No. 9 (1959)). The defense of "extreme emotional disturbance" has two principal components (1) the particular defendant must have "acted under the influence of extreme emotional disturbance", and (2) there must have been "a reasonable explanation or excuse" for such extreme emotional disturbance, "the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be". The first requirement is wholly subjective i. e., it involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham.

The second component is more difficult to describe i.e., whether there was a reasonable explanation or excuse for the emotional disturbance. It was designed to sweep away "the rigid rules that have developed with respect to the sufficiency of particular types of provocation, such as the rule that words alone can never be enough" (Id., at pp. 46-47), and "avoids a merely arbitrary limitation on the nature of the antecedent circumstances that may justify a mitigation" (Id.). "The ultimate test, however, is objective; there must be 'reasonable' explanation or excuse for the actor's disturbance" (Id., at p. 41). In light of these comments and the necessity of articulating the defense in terms comprehensible to jurors, we conclude that the determination whether there was reasonable explanation or excuse for a particular emotional disturbance should be made by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for his emotional disturbance was reasonable, so as to entitle him to a reduction of the crime charged from murder in the second degree to manslaughter in the first degree.[2] We recognize that even such a description of the defense provides no precise guidelines and necessarily leaves room for the exercise of judgmental evaluation by the jury. This, however, appears to have been the intent of the draftsmen. "The purpose was explicitly to give full scope to what amounts to a plea in mitigation based upon a mental or emotional trauma of significant dimensions, with the jury asked to show whatever empathy it can." (Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col.L.Rev. 1425, 1446.)

By suggesting a standard of evaluation which contains both subjective and objective elements, we believe that the drafters of the code adequately achieved their dual goals of broadening the "heat of passion" doctrine to apply to a wider range of circumstances while retaining some element of objectivity in the process. The result of their draftsmanship is a statute which offers the defendant a fair opportunity to seek mitigation without requiring that the trier of fact find mitigation in each case where an emotional disturbance is shown or as the drafters put it, to offer "room for argument as to the reasonableness of the explanations or excuses offered."

We note also that this interpretation comports with what has long been recognized as the underlying purpose of any mitigation statute. In the words of Mr. Justice Cardozo, referring to an earlier statute: "What we have is merely a privilege offered to the jury to find the lesser degree when the suddenness of the intent, the vehemence of the passion, seems to call irresistibly for the exercise of mercy. I have no objection to giving them this dispensing power, but it should be given to them directly and not in a mystifying cloud of words." (Cardozo, Law and Literature, pp. 100-101.) In the end, we believe that what the Legislature intended in enacting the statute was to allow the finder of fact the discretionary power to mitigate the penalty when presented with a situation which, under the circumstances, appears to them to have caused an understandable weakness in one of their fellows. Perhaps the chief virtue of the statute is that it allows such discretion without engaging in a detailed explanation of individual circumstances in which the statute would apply, thus avoiding the "mystifying cloud of words" which Mr. Justice Cardozo abhorred.

We conclude that the trial court, in this case, properly applied the statute. The court apparently accepted, as a factual matter, that defendant killed Miss Lo Consolo while under the influence of "extreme emotional disturbance", a threshold question which must be answered in the affirmative before any test of reasonableness is required. The court, however, also recognized that in exercising its function as trier of fact, it must make a further inquiry into the reasonableness of that disturbance. In this regard, the court considered each of the mitigating factors put forward by defendant, including his claimed mental disability, but found that the excuse offered by defendant was so peculiar to him that it was unworthy of mitigation. The court obviously made a sincere effort to understand defendant's "situation" and "the circumstances as defendant believed them to be", but concluded that the murder in this case was the result of defendant's malevolence rather than an understandable human response deserving of mercy. We cannot say, as a matter of law, that the court erred in so concluding.

Generally speaking, involuntary manslaughter is something of a catchall category. It consists of those killings done either through the commission of an unlawful act not amounting to a felony, or a lawful act done with a sufficiently culpable mental state short of malice aforethought. Thus, if the defendant committed a felony that caused the death of another, that death is generally treated as felony murder as discussed in Part 4.3.3. And if the defendant's recklessless was so great as to constitute implied malice, an abandoned and malignant heart, etc. it is second degree murder as discussed in Part 4.3.2.

To fall into the involuntary manslaughter category, therefore, the defendant's mens rea must be sufficiently culpable to be punished criminally, but not too culpable. As you might imagine, explaining this to a jury is difficult. In the cases that follow, we see two approaches. In the first, the court tries, unsuccessfully in my opinion, to explain to the jury what separates killings done with ordinary negligence from those which constitute involuntary manslaughter. In the second, the task is simplified; the legislature has chosen to criminalize killings done with ordinary tort negligence. This, however, raises questions regarding the fairness of punishing such failure to exercise due care criminally.

Commonwealth v. Welansky

Massachusetts Supreme Judicial Court

55 N.E.2d 902 (Mass. 1942) 

LUMMUS, J.

[The defendant was charged with multiple counts of homicide for his involvement in the Cocoanut Grove fire, an infamous nightclub disaster that claimed the lives of nearly 500 people in Boston.]

On November 28, 1942, and for about nine years before that day, a corporation named New Cocoanut Grove, Inc., maintained and operated a "night club" in Boston, for the furnishing to the public for compensation of food, drink, and entertainment consisting of orchestra and band music, singing and dancing. It employed about eighty persons.

The defendant was accustomed to spend his evenings at the night club, inspecting the premises and superintending the business. On November 16, 1942, he became suddenly ill, and was carried to a hospital, where he was in bed for three weeks and remained until discharged on December 11, 1942. During his stay at the hospital, although employees visited him there, he did not concern himself with the night club, because, as he testified, he "knew it would be all right" and that "the same system . . . [he] had would continue" during his absence. There is no evidence of any act, omission or condition at the night club on November 28, 1942, (apart from the lighting of a match hereinafter described), that was not within the usual and regular practice during the time before the defendant was taken ill when he was at the night club nearly every evening.

We now come to the story of the fire. A little after ten o'clock on the evening of Saturday, November 28, 1942, the night club was well filled with a crowd of patrons. It was during the busiest season of the year. An important football game in the afternoon had attracted many visitors to Boston. Upon the evidence it could have been found that at that time there were from two hundred fifty to four hundred persons in the Melody Lounge, from four hundred to five hundred in the main dining room and the Caricature Bar, and two hundred fifty in the Cocktail Lounge. Yet it could have been found that the crowd was no larger than it had been on other Saturday evenings before the defendant was taken ill, and that there had been larger crowds at earlier times.

A bartender in the Melody Lounge noticed that an electric light bulb which was in or near the cocoanut husks of an artificial palm tree in the corner had been turned off and that the corner was dark. He directed a sixteen year old bar boy who was waiting on customers at the tables to cause the bulb to be lighted. A soldier sitting with other persons near the light told the bar boy to leave it unlighted. But the bar boy got a stool, lighted a match in order to see the bulb, turned the bulb in its socket, and thus lighted it. The bar boy blew the match out, and started to walk away. Apparently the flame of the match had ignited the palm tree and that had speedily ignited the low cloth ceiling near it, for both flamed up almost instantly. The fire spread with great rapidity across the upper part of the room, causing much heat. The crowd in the Melody Lounge rushed up the stairs, but the fire preceded them. People got on fire while on the stairway. The fire spread with great speed across the foyer and into the Caricature Bar and the main dining room, and thence into the Cocktail Lounge. Soon after the fire started the lights in the night club went out. The smoke had a peculiar odor. The crowd were panic stricken, and rushed and pushed in every direction through the night club, screaming, and overturning tables and chairs in their attempts to escape.

The door at the head of the Melody Lounge stairway was not opened until firemen broke it down from outside with an axe and found it locked by a key lock, so that the panic bar could not operate. Two dead bodies were found close to it, and a pile of bodies about seven feet from it. The door in the vestibule of the office did not become open, and was barred by the clothing rack. The revolving door soon jammed, but was burst out by the pressure of the crowd. The head waiter and another waiter tried to get open the panic doors from the main dining room to Shawmut Street, and succeeded after some difficulty. The other two doors to Shawmut Street were locked, and were opened by force from outside by firemen and others. Some patrons escaped through them, but many dead bodies were piled up inside them. A considerable number of patrons escaped through the Broadway door, but many died just inside that door. Some employees, and a great number of patrons, died in the fire. Others were taken out of the building with fatal burns and injuries from smoke, and died within a few days.

I. The pleadings, verdicts, and judgments.

The alleged misconduct of the defendant consisted in causing or permitting or failing reasonably to prevent defective wiring, the installation of inflammable decorations, the absence of fire doors, the absence of "proper means of egress properly maintained" and "sufficient proper" exits, and overcrowding.

II. The principles governing liability.

The Commonwealth disclaimed any contention that the defendant intentionally killed or injured the persons named in the indictments as victims. It based its case on involuntary manslaughter through wanton or reckless conduct. The judge instructed the jury correctly with respect to the nature of such conduct.

Usually wanton or reckless conduct consists of an affirmative act, like driving an automobile or discharging a firearm, in disregard of probable harmful consequences to another. But where, as in the present case, there is a duty of care for the safety of business visitors invited to premises which the defendant controls, wanton or reckless conduct may consist of intentional failure to take such care in disregard of the probable harmful consequences to them or of their right to care. To define wanton or reckless conduct so as to distinguish it clearly from negligence and gross negligence is not easy. Sometimes the word "wilful" is prefaced to the words "wanton" and "reckless" in expressing the concept. That only blurs it. Wilful means intentional. In the phrase "wilful, wanton or reckless conduct," if "wilful" modifies "conduct" it introduces something different from wanton or reckless conduct, even though the legal result is the same. Wilfully causing harm is a wrong, but a different wrong from wantonly or recklessly causing harm. If "wilful" modifies "wanton or reckless conduct" its use is accurate. What must be intended is the conduct, not the resulting harm. The words "wanton" and "reckless" are practically synonymous in this connection, although the word "wanton" may contain a suggestion of arrogance or insolence or heartlessness that is lacking in the word "reckless." But intentional conduct to which either word applies is followed by the same legal consequences as though both words applied.

The standard of wanton or reckless conduct is at once subjective and objective, as has been recognized ever since Commonwealth v. Pierce, 138 Mass. 165. Knowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger. The judge charged the jury correctly when he said,

"To constitute wanton or reckless conduct, as distinguished from mere negligence, grave danger to others must have been apparent, and the defendant must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm. If the grave danger was in fact realized by the defendant, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not. But even if a particular defendant is so stupid [or] so heedless . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct in his dangerous act or omission, if an ordinary normal man under the same circumstances would have realized the gravity of the danger. A man may be reckless within the meaning of the law although he himself thought he was careful."

The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. Wanton or reckless conduct amounts to what has been variously described as indifference to or disregard of probable consequences to that other.

The words "wanton" and "reckless" are thus not merely rhetorical or vituperative expressions used instead of negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind. For many years this court has been careful to preserve the distinction between negligence and gross negligence, on the one hand, and wanton or reckless conduct on the other. In pleadings as well as in statutes the rule is that "negligence and wilful and wanton conduct are so different in kind that words properly descriptive of the one commonly exclude the other."

Notwithstanding language used commonly in earlier cases, and occasionally in later ones, it is now clear in this Commonwealth that at common law conduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct. There is in Massachusetts at common law no such thing as "criminal negligence."

Wanton or reckless conduct is the legal equivalent of intentional conduct. If by wanton or reckless conduct bodily injury is caused to another, the person guilty of such conduct is guilty of assault and battery. To convict the defendant of manslaughter, the Commonwealth was not required to prove that he caused the fire by some wanton or reckless conduct. Fire in a place of public resort is an ever present danger. It was enough to prove that death resulted from his wanton or reckless disregard of the safety of patrons in the event of fire from any cause.

Judgments affirmed.

Although it is one of the classic cases in this area of law, Welansky is, in my opinion, a mess. After reading the case, could you explain to a layperson what mental state is required before a defendant can be convicted of involuntary manslaughter under Massachusetts law? It is clear that it is something more than negligence, but what more? Must the defendant anticipate the injury? Did Welansky contemplate the death of his patrons and proceed anyhow? How could the legislature (or a court interpreting the statute) make matters clearer to a jury?

State v. Williams

Court of Appeals of Washington

484 P.2d 1167 (1971)

HOROWITZ, Chief Judge.

Defendants, husband and wife, were charged by information filed October 3, 1968, with the crime of manslaughter for negligently failing to supply their 17-month child with necessary medical attention, as a result of which he died on September 12, 1968. Upon entry of findings, conclusions and judgment of guilty, sentences were imposed on April 22, 1969. Defendants appeal.

The defendant husband, Walter Williams, is a 24-year old full-blooded Sheshont Indian with a sixth-grade education. His sole occupation is that of laborer. The defendant wife, Bernice Williams, is a 20-year-old part Indian with an 11th grade education. At the time of the marriage, the wife had two children, the younger of whom was a 14-month son. Both parents worked and the children were cared for by the 85-year-old mother of the defendant husband. The defendant husband assumed parental responsibility with the defendant wife to provide clothing, care and medical attention for the child. Both defendants possessed a great deal of love and affection for the defendant wife's young son.

The court expressly found:

That both defendants were aware that William Joseph Tabafunda was ill during the period September 1, 1968 to September 12, 1968. The defendants were ignorant. They did not realize how sick the baby was. They thought that the baby had a toothache and no layman regards a toothache as dangerous to life. They loved the baby and gave it aspirin in hopes of improving its condition. They did not take the baby to a doctor because of fear that the Welfare Department would take the baby away from them. They knew that medical help was available because of previous experience. They had no excuse that the law will recognize for not taking the baby to a doctor.

The defendants Walter L. Williams and Bernice J. Williams were negligent in not seeking medical attention for William Joseph Tabafunda.

That as a proximate result of this negligence, William Joseph Tabafunda died.

From these and other findings, the court concluded that the defendants were each guilty of the crime of manslaughter as charged.

Parental duty to provide medical care for a dependent minor child was recognized at common law and characterized as a natural duty. Under [Washington] statutes the crime is deemed committed even though the death of the victim is the proximate result of only simple or ordinary negligence. The concept of simple or ordinary negligence describes a failure to exercise the 'ordinary caution' necessary to make out the defense of excusable homicide. Ordinary caution is the kind of caution that a man of reasonable prudence would exercise under the same or similar conditions. If, therefore, the conduct of a defendant, regardless of his ignorance, good intentions and good faith, fails to measure up to the conduct required of a man of reasonable prudence, he is guilty of ordinary negligence because of his failure to use 'ordinary caution.' If such negligence proximately causes the death of the victim, the defendant, as pointed out above, is guilty of statutory manslaughter.

Because of the serious nature of the charge against the parent and step-parent of a well-loved child, and out of our concern for the protection of the constitutional rights of the defendants, we have made an independent examination of the evidence to determine whether it substantially supports the court's express finding on proximate cause and its implied finding that the duty to furnish medical care became activated in time to prevent death of the child.

Dr. Gale Wilson, the autopsy surgeon and chief pathologist for the King County Coroner, testified that the child died because an abscessed tooth had been allowed to develop into an infection of the mouth and cheeks, eventually becoming gangrenous. This condition, accompanied by the child's inability to eat, brought about malnutrition, lowering the child's resistance and eventually producing pneumonia, causing the death. Dr. Wilson testified that in his opinion the infection had lasted for approximately 2 weeks, and that the odor generally associated with gangrene would have been present for approximately 10 days before death. He also expressed the opinion that had medical care been first obtained in the last week before the baby's death, such care would have been obtained too late to have saved the baby's life. Accordingly, the baby's apparent condition between September 1 and September 5, 1968 became the critical period for the purpose of determining whether in the exercise of ordinary caution defendants should have provided medical care for the minor child.

The testimony concerning the child's apparent condition during the critical period is not crystal clear, but is sufficient to warrant the following statement of the matter. The defendant husband testified that he noticed the baby was sick about 2 weeks before the baby died. The defendant wife testified that she noticed the baby was ill about a week and a half or 2 weeks before the baby died. The evidence showed that in the critical period the baby was fussy; that he could not keep his food down; and that a cheek started swelling up. The swelling went up and down, but did not disappear. In that same period, the cheek turned 'a bluish color like.' The defendants, not realizing that the baby was as ill as it was or that the baby was in danger of dying, attempted to provide some relief to the baby by giving the baby aspirin during the critical period and continued to do so until the night before the baby died. The defendants thought the swelling would go down and were waiting for it to do so; and defendant husband testified, that from what he had heard, neither doctors nor dentists pull out a tooth 'when it's all swollen up like that.' There was an additional explanation for not calling a doctor given by each defendant. Defendant husband testified that 'the way the cheek looked, . . . and that stuff on his hair, they would think we were neglecting him and take him away from us and not give him back.' Defendant wife testified that the defendants were 'waiting for the swelling to go down,' and also that they were afraid to take the child to a doctor for fear that the doctor would report them to the welfare department, who, in turn, would take the child away. 'It's just that I was so scared of losing him.' They testified that they had heard that the defendant husband's cousin lost a child that way. The evidence showed that the defendants did not understand the significance or seriousness of the baby's symptoms. However, there is no evidence that the defendants were physically or financially unable to obtain a doctor, or that they did not know an available doctor, or that the symptoms did not continue to be a matter of concern during the critical period. Indeed, the evidence shows that in April 1968 defendant husband had taken the child to a doctor for medical attention.

In our opinion, there is sufficient evidence from which the court could find, as it necessarily did, that applying the standard of ordinary caution, I.e., the caution exercisable by a man of reasonable prudence under the same or similar conditions, defendants were sufficiently put on notice concerning the symptoms of the baby's illness and lack of improvement in the baby's apparent condition in the period from September 1 to September 5, 1968, to have required them to have obtained medical care for the child. The failure so to do in this case is ordinary or simple negligence, and such negligence is sufficient to support a conviction of statutory manslaughter.

The judgment is affirmed.

UTTER and WILLIAMS, JJ., concur.

If Welansky raised questions regarding the meaning of the statute, Williams raises questions regarding the fairness of the statute. Is it just to hold the Williamses criminally liable for the death of their child? Would any of the theories of punishment be served by such criminal responsibility? Are these questions raised by Welansky? Does the availability of tort liability in Welansky change your thoughts about criminal liability? Should it?

One treatise on the subject recently summarized the state of the law thusly:

Commentaries and hornbooks will sometimes declare, without qualification, that negligence is the default mens rea for involuntary manslaughter. Given the complexities noted above, such over-simplifications are unhelpful and ultimately misleading. As of 2024, the following 23 states require that a defendant act recklessly to be convicted of first-degree involuntary manslaughter: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Hawaii, Illinois, Kansas, Missouri, New Hampshire, New Jersey, New York, North Dakota, Oregon, Rhode Island, Kentucky, South Dakota, Texas, Utah, Washington, and Wyoming. In addition to this list, another seven states require negligence but the define negligence with reference to either recklessness or to the “conscious disregard” that one usually associates with recklessness, especially in the context of the Model Penal Code: Idaho, Massachusetts, Minnesota, Pennsylvania, South Carolina, Virginia, and West Virginia. Three states have no crime of involuntary manslaughter but rely on a crime of “reckless homicide” that services as a functional equivalent: Indiana, Tennessee, and Wisconsin.Montana's penal code has no crime of involuntary manslaughter but criminalizes negligent homicide. Four states, Iowa, Nebraska, Louisiana, and Ohio, define involuntary manslaughter exclusively as “unlawful acts” requiring the commission of misdemeanors or felonies, and thereby ignore the “lawful act” variety of involuntary manslaughter. The rest of the states, 12 in all, require negligence for involuntary manslaughter, usually gross or criminal negligence as noted above, or its equivalent, “without due caution or circumspection”: California, Florida, Georgia, Maine, Maryland, Michigan, Mississippi, New Mexico, North Carolina, Oklahoma, Vermont, Nevada. This survey suggests that recklessness, rather than negligence, represents the prevailing approach to involuntary manslaughter, to the extent that generalizations matter, since though what matters in any case is the legal standard in that jurisdiction.

Commonwealth v. Malone

Supreme Court of Pennsylvania

47 A.2d 445 (Penn. 1946)

MAXEY, Chief Justice.

This is an appeal from the judgment and sentence under a conviction of murder in the second degree. William H. Long, age 13 years, was killed by a shot from a 32-caliber revolver held against his right side by the defendant, then aged 17 years. These youths were on friendly terms at the time of the homicide. The defendant and his mother while his father and brother were in the U. S. Armed Forces, were residing in Lancaster, Pa., with the family of William H. Long, whose son was the victim of the shooting.

On the evening of February 26th, 1945, when the defendant went to a moving picture theater, he carried in the pocket of his raincoat a revolver which he had obtained at the home of his uncle on the preceding day. In the afternoon preceding the shooting, the decedent procured a cartridge from his father's room and he and the defendant placed it in the revolver.

After leaving the theater, the defendant went to a dairy store and there met the decedent. Both youths sat in the rear of the store ten minutes, during which period the defendant took the gun out of his pocket and loaded the chamber to the right of the firing pin and then closed the gun. A few minutes later, both youths sat on stools in front of the lunch counter and ate some food. The defendant suggested to the decedent that they play ‘Russian Poker.’ ¹ Long replied; ‘I don't care; go ahead.’

The defendant then placed the revolver against the right side of Long and pulled the trigger three times. The third pull resulted in a fatal wound to Long. The latter jumped off the stool and cried: ‘Oh! Oh! Oh!’ and Malone said: ‘Did I hit you, Billy? Gee, Kid, I'm sorry.’ Long died from the wounds two days later.

The defendant testified that the gun chamber he loaded was the first one to the right of the firing chamber and that when he pulled the trigger he did not ‘expect to have the gun go off.’ He declared he had no intention of harming Long, who was his friend and companion. The defendant was indicted for murder, tried and found guilty of murder in the second degree and sentenced to a term in the penitentiary for a period not less than five years and not exceeding ten years. A new trial was refused and after sentence was imposed, an appeal was taken.

At common law, the ‘grand criterion’ which ‘distinguished murder from other killing’ was malice on the part of the killer and this malice was not necessarily ‘malevolent to the deceased particularly’ but ‘any evil design in general; the dictate of a wicked, depraved and malignant heart’; 4 Blackstone 199. Among the examples that Blackstone cites of murder is ‘coolly discharging a gun among a multitude of people,’ causing the death of someone of the multitude.

In Pennsylvania, the common law crime of murder is divided into two degrees, and murder of the second degree includes every element which enters into first degree murder except the intention to kill: When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that ‘wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty’ which proved that there was at that time in him ‘the state or frame of mind termed malice.' This court has declared that if a driver ‘wantonly, recklessly, and in disregard of consequences' hurls ‘his car against another, or into a crowd’ and death results from that act ‘he ought . . . to face the same consequences that would be meted out to him if he had accomplished death by wantonly and wickedly firing a gun.’  ‘Malice in law means a depraved and wicked heart that is reckless and disregards the rights of others. Reckless conduct that results in the death of another is malice. To illustrate that: If a man fires a gun into a crowd and kills another it is murder, because the fact of the reckless shooting of a gun into a crowd is malice in law. That wicked and depraved disposition and that recklessness and disregard of human life is malice.’

‘When a man uses a gun loaded with powder and shot and aimed at a vital part of the body of another and discharges it, he must be presumed to know that death is likely to follow.’ In Com. v. Arnold, 292 Pa. 210, at page 213, this court said: ‘Malice will be implied from conduct, recklessness of consequences, or the cruelty of the crime.’

Trial judges should make it clear to the jury that an unlawful killing in order to constitute murder must result from an intentional, felonious act and not merely from an inadvertent or negligent act.

The killing of William H. Long by this defendant resulted from an act intentionally done by the latter, in reckless and wanton disregard of the consequences which were at least sixty percent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long's body. This killing was, therefore, murder, for malice in the sense of a wicked disposition is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others. The fact that there was no motive for this homicide does not exculpate the accused. In a trial for murder proof of motive is always relevant but never necessary.

¹It has been explained that ‘Russian Poker’ is a game in which the participants, in turn, place a single cartridge in one of the five chambers of a revolver cylinder, give the latter a quick twirl, place the muzzle of the gun against the temple and pull the trigger, leaving it to chance whether or not death results to the trigger puller.

The Court's last paragraph contains this sentence: "This killing was, therefore, murder, for malice in the sense of a wicked disposition is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others."

What mental state is this? Is it recklessness? Are you sure that Malone was reckless in the MPC sense of that word?

What do you think happened with the gun? Can you determine how the Court came to the conclusion that there was a 60% likelihood that the gun would go off? What must the Court have concluded about Malone's conduct to arrive at this number? Is that conclusion consistent with Malone's testimony?

Do you believe that Malone believed the gun might go off? Is his reaction after the gunshot evidence of his recklessness or of its opposite?

United States v. Fleming

United States Court of Appeals, Fourth Circuit

739 F.2d 945 (4^th Cir. 1984)

HARRISON L. WINTER, Chief Judge:

This case requires us to decide whether a non-purposeful vehicular homicide can ever amount to murder. We conclude that it can.

I.

Defendant David Earl Fleming was convicted of second-degree murder, in violation of 18 U.S.C. § 1111 in the death of Margaret Jacobsen Haley. Mrs. Haley was the driver of an automobile with which an automobile operated by the defendant collided when defendant lost control while traveling at a high rate of speed.

Fleming's car was observed at about 3:00 p.m. on June 15, 1983, traveling southbound on the George Washington Memorial Parkway in northern Virginia at speeds variously estimated by witnesses as between 70 and 100 miles per hour. The speed limit on the Parkway is, at most points, 45 miles per hour. Fleming several times directed his southbound car into the northbound lanes of the Parkway in order to avoid traffic congestion in the southbound lanes. Northbound traffic had to move out of his way in order to avoid a head-on collision. At one point, a pursuing police officer observed Fleming steer his car into the northbound lanes, which were separated from the southbound lanes at that point and for a distance of three-tenths of a mile by a raised concrete median, and drive in the northbound lanes, still at a high rate of speed, for the entire length of the median. At two other points, Fleming traveled in northbound lanes that were separated from the southbound lanes by medians.

Approximately six miles from where his car was first observed traveling at excessive speed, Fleming lost control of it on a sharp curve. The car slid across the northbound lanes, striking the curb on the opposite side of the highway. After striking the curb, Fleming's car straightened out and at that moment struck the car driven by Mrs. Haley that was coming in the opposite direction. Fleming's car at the moment of impact was estimated by witnesses to have been traveling 70 to 80 miles per hour; the speed limit at that point on the Parkway was 30 miles per hour. Mrs. Haley received multiple severe injuries and died before she could be extricated from her car.

Fleming was pulled from the wreckage of his car and transported to a Washington hospital for treatment. His blood alcohol level was there tested at .315.

Fleming was indicted by a grand jury on a charge of second-degree murder and a number of other charges which are not relevant to this appeal. He was tried before a jury on the murder charge and convicted.

II.

Defendant maintains that the facts of the case cannot support a verdict of murder. Particularly, defendant contends that the facts are inadequate to establish the existence of malice aforethought, and thus that he should have been convicted of manslaughter at most.

Malice aforethought, as provided in 18 U.S.C. § 1111(a), is the distinguishing characteristic which, when present, makes a homicide murder rather than manslaughter. Whether malice is present or absent must be inferred by the jury from the whole facts and circumstances surrounding the killing.

Proof of the existence of malice does not require a showing that the accused harbored hatred or ill will against the victim or others. Neither does it require proof of an intent to kill or injure. Malice may be established by evidence of conduct which is “reckless and wanton and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.” To support a conviction for murder, the government need only have proved that defendant intended to operate his car in the manner in which he did with a heart that was without regard for the life and safety of others.

We conclude that the evidence regarding defendant's conduct was adequate to sustain a finding by the jury that defendant acted with malice aforethought. It is urged upon us, however, that a verdict of murder in this case should be precluded by the existence of a statute defining and proscribing involuntary manslaughter, 18 U.S.C. § 1112(a). Defendant maintains that vehicular homicide where no purpose on the part of the accused to have caused death or injury has been shown should result only in conviction of involuntary manslaughter. Otherwise, defendant argues, all drunk driving homicides and many reckless driving ones will be prosecutable as murder. We are not persuaded by the argument.

The difference between malice, which will support conviction for murder, and gross negligence, which will permit of conviction only for manslaughter, is one of degree rather than kind. In the vast majority of vehicular homicides, the accused has not exhibited such wanton and reckless disregard for human life as to indicate the presence of malice on his part. In the present case, however, the facts show a deviation from established standards of regard for life and the safety of others that is markedly different in degree from that found in most vehicular homicides. In the average drunk driving homicide, there is no proof that the driver has acted while intoxicated with the purpose of wantonly and intentionally putting the lives of others in danger. Rather, his driving abilities were so impaired that he recklessly put others in danger simply by being on the road and attempting to do the things that any driver would do. In the present case, however, danger did not arise only by defendant's determining to drive while drunk. Rather, in addition to being intoxicated while driving, defendant drove in a manner that could be taken to indicate depraved disregard of human life, particularly in light of the fact that because he was drunk his reckless behavior was all the more dangerous.

AFFIRMED.

Note based on People v. Watson, 637 P.2d 279 (Ca. 1981)

In Watson, the defendant was charged with second degree murder after driving between 70 and 80 in a 35 MPH zone, ultimately killing the driver and six-year-old passenger of another car. Thirty minutes after the incident defendant’s BAC was .23 percent. The California Supreme Court concluded that there was sufficient evidence to charge Watson with reckless homicide: “Defendant had consumed enough alcohol to raise his blood alcohol content to a level which would support a finding that he was legally intoxicated. He had driven his car to the establishment where he had been drinking, and he must have known that he would have to drive it later. It also may be presumed that defendant was aware of the hazards of driving while intoxicated.”

In dissent, Chief Justice Bird disagreed:

The fact that respondent was under the influence of alcohol made his driving more dangerous. A high percentage of accidents is caused by such drivers. No one holds a brief for this type of activity. However, a rule should not be promulgated by this court that driving while under the influence of alcohol is sufficient to establish an act “likely to kill.” Death or injury is not the probable result of driving while under the influence of alcohol. “Thousands, perhaps hundreds of thousands, of Californians each week reach home without accident despite their driving intoxicated.”

The majority also fail to demonstrate that it is reasonable to infer that respondent had a conscious disregard for life. Can a conscious disregard for life be established by the fact that several hours before the accident respondent drove his car to a bar? The majority hold as a matter of law that he “must have known” he would have to drive his car later and that he wilfully drank alcohol until he was under its influence.

How does respondent's state of mind at the time he drove to the bar and began drinking justify an inference that he had a reckless state of mind at the time of the accident? This meager evidence does not justify the inference that by drinking alcohol he harbored a conscious disregard for life when he later drove his car! I submit that the majority's reasoning that such an inference may be drawn to support a finding of implied malice will be used to establish second degree murder in every case in which a person drives a car to a bar, a friend's home, or a party, drinks alcohol so that he is under its influence, drives away and is involved in a fatal accident.

Excerpt of People v. Jefferson

Supreme Court of Colorado

748 P.2d 1223 (Colo. 1988)

[Defendants were charged with first degree murder under a theory of universal malice and challenged the statute as depriving them of equal protection; they argued that there was no rational basis for treating some accidental killings as first degree murder while knowing, unpremeditated killings are treated as second degree murder.]

Section 18–3–102(1)(d) provides that a person commits the crime of murder in the first degree if:

Under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another.

By comparison, section 18–3–103(1)(a) provides that a person commits the crime of murder in the second degree if “[h]e causes the death of a person knowingly, but not after deliberation.” If these two crimes cannot be sufficiently distinguished so that a person of average intelligence could understand the difference between them, then the defendant who engages in identical conduct proscribed by both statutes but is sentenced under the harsher penalty accompanying a conviction for first-degree murder, would be denied the equal protection of the laws. We now turn to an analysis of the extreme indifference murder statute to determine if it proscribes conduct different from that proscribed by the state's second-degree murder statute.

At common law, murder was defined as the unlawful killing of another human being with “malice aforethought.” There were no degrees of murder at common law; instead, malice was the essential ingredient distinguishing murder from other types of criminal homicide. Over time, the phrase malice aforethought became an arbitrary symbol used by common law judges to signify any of a number of mental states deemed sufficient to support liability for murder. Among the categories was what became known as “depraved-heart murder.” This label derived from decisions and statutes condemning as murder unintentional homicide under circumstances evincing a “depraved mind” or an “abandoned and malignant heart.”

Malice aforethought could be either express or implied. Malice included more than simply an intent to kill or endanger human life. Malice could also be found where the killer directed no animosity, enmity, or ill will toward the victim. In describing the kind of malice which would support a conviction for murder at common law, a number of commentators seized upon the following definition:

Malice is not restricted to hatred, spite, or malevolence toward the particular person slain, but also includes that general malignity and reckless disregard of human life proceeding from a heart void of a just sense of social duty and fatally bent on mischief.

1 Warren on Homicide § 66 at 271

The essential concept was one of extreme recklessness regarding homicidal risk. Thus, a person might be liable for murder absent any actual intent to kill or injure if he caused the death of another in a manner exhibiting “a wanton and willful disregard of an unreasonable human risk,” or, in the confusing elaboration of one court “a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty.” Since “depraved heart” murderers exhibit the same disregard for the value of human life as deliberate or premeditated murderers, they are viewed as deserving of the same serious sanctions.

Examples of the kinds of conduct which would demonstrate “depraved heart” murder at common law include: the firing of a loaded gun, without provocation, into a moving train and the resultant death of an innocent bystander; the discharge of a firearm into a crowd of people, operating a vehicle at high speed, placing obstructions on a railroad track, throwing a heavy piece of timber from a roof onto a crowded street; pointing a revolver loaded with a single cartridge and firing it on the third pull of the trigger during a game of Russian Roulette; firing several shots into a home known to be occupied; intending to shoot over a victim's head in order to scare him, but hitting him by “mistake;” and throwing a heavy beer glass at a woman carrying a lighted oil lamp.

The Pennsylvania General Assembly first divided the crime of murder into degrees in 1794. In 1861, the territory of Colorado adopted the innovative degree structure introduced by Pennsylvania, and classified murder into two degrees. The earliest Colorado murder statutes embraced as murder in the first degree more than premeditated or intentional murder. Also classified as murder in the first degree were those homicides perpetrated by an “act greatly dangerous to the lives of others and indicating a depraved mind, regardless of human life.”

From Colorado's earliest days the legislature has elected to punish the forerunner of extreme indifference murder as murder of the highest degree. The language quoted above remained a fixture of Colorado's murder statutes despite periodic updating and revising of the state's criminal laws.

The appearance of the Model Penal Code prompted the Colorado General Assembly to recodify the state's criminal laws in the 1972 Colorado Criminal Code (Code). Effective July 1, 1972, the new Code reflected many reforms recommended by the Model Penal Code, particularly the use of four concepts to find the mental culpability required of most crimes. At the same time, the Code retained various measures of common law origin, including the degree structure for murder. The new first-degree murder statute proscribed premeditated and felony murder, as well as a modernized form of depraved heart murder.

What has consistently exercised the legislature in proscribing extreme indifference murder is aggravated recklessness, not that practical certainty of death which is at the heart of the second-degree murder statute. This interpretation is supported by section 210.1 of the Model Penal Code, a major source for the 1972 revision of the Colorado Criminal Code. That section proscribes as murder, homicides committed “purposely or knowingly,” as well as homicides “committed recklessly under circumstances manifesting extreme indifference to the value of human life.”

The comments to the Model Penal Code state that “there is a kind of reckless homicide that cannot fairly be distinguished in grading terms from homicides committed purposely or knowingly.” Ordinary recklessness is sufficient for conviction of manslaughter. In a prosecution for murder, however, the code calls for the further judgment “whether the actor's conscious disregard of the risk, under the circumstances, manifests extreme indifference to the value of human life.” Whether an actor's recklessness is so extreme is a question which “must be left directly to the trier of fact under instructions which make it clear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder....” The comments to this section of the Model Penal Code list as examples of that extreme or aggravated recklessness which would qualify as criminal homicide: shooting into a crowd, an occupied house, or a moving automobile.

What the legislature sought to proscribe, especially through its 1981 amendments, was aggravated or extremely reckless conduct, under circumstances manifesting cold-blooded disregard for the value of human life generally.

The 1981 addition of the words “universal malice” and “generally” to the language of the statute is an unmistakable indication of the legislative intent to limit the application of extreme indifference murder to situations in which the actor demonstrates an indifference to human life generally, as distinguished from indifference to, or willingness to take, a particular human life. This interpretation is supported by the addition of the words “or persons” following person in the statute.

These changes reinforce the element of cold-bloodedness. When a person creates a grave risk of death to a person or persons and kills for essentially no reason, or upon slight or insufficient provocation without knowing or caring who the victim may be, the state is justified in treating the crime as first-degree murder. The amended statute emphasizes those crucial factors which make extreme indifference murder a more serious crime than second-degree murder, even assuming an identical mens rea requirement for both crimes.

Rather than attempting to define a heightened degree of awareness more culpable than acting “knowingly,” and at the same time avoiding the confusion which has accompanied the division of “intentionally” into specific and general categories, the legislature has attempted to proscribe a kind of knowing, killing conduct which it considers to be of greater social consequence and which merits greater punishment. The extreme indifference murder charge is more blameworthy than the second-degree murder charge, because the defendant's conduct demonstrates that his lack of care and concern for the value of human life generally are extreme, and that the circumstances of his actions evidence that aggravated recklessness or cold-bloodedness which has come to be known as “universal malice.”

Further, the circumstances under which an act is performed may have a significant effect upon the legal sanction imposed. If, for example, a person “knowingly causes the death of another person under circumstances where the act causing the death was performed upon a sudden heat of passion,” he is guilty of manslaughter rather than first-degree murder under the Colorado Criminal Code.

A comparison of the two statutes reveals that extreme indifference murder contains an element in addition to those required for second-degree murder. A person commits the crime of extreme indifference murder if: (1) under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally; (2) he knowingly engages in conduct which creates a grave risk of death to a person, or persons, and (3) thereby causes the death of another. By comparison, a person commits the crime of second-degree murder if he: (1) knowingly causes the death of a person, but (2) not after deliberation.

The presence of this additional element in the definition of extreme indifference murder requires the prosecution to prove that the defendant's conduct manifested extreme indifference to the value of human life generally, and that the circumstances evidence an attitude of universal malice.

It is rational for the legislature to differently punish knowing conduct of a type directed against a particular individual, and knowing, killing conduct—aggravated recklessness or cold-bloodedness—which by its very nature evidences a willingness to take human life without regard to the victim. A more specific actus reus is sufficient to distinguish prohibited conduct

In summary, we uphold the constitutionality of section 18–3–102(1)(d), Colorado's extreme indifference murder statute. As amended, the statute, proscribing as it does knowing, killing conduct “under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally,” is qualitatively and categorically distinct from the kind of knowing killing proscribed by the second-degree murder statute. In returning the statute in 1981 to its common law and historical roots of cold-bloodedness or aggravated recklessness, the legislature has provided an intelligible standard of criminal culpability. A person of average intelligence can reasonably distinguish this offense from conduct proscribed by the second-degree murder statute. That is all that is necessary to distinguish the statutes in the wake of an equal protection challenge.

Because a single criminal transaction may give rise to the violation of more than one statute, it is for the trier of fact to decide whether the facts of the individual case justify a finding that the defendant is guilty of extreme indifference, as opposed to second-degree, murder. In an extreme indifference murder case, the jury must make judgments of a distinct kind beyond what is necessary for a verdict of guilty to second-degree murder. It must be persuaded beyond a reasonable doubt that the degree of indifference to human life generally shown by the defendant in committing murder was extreme, and committed under circumstances evidencing universal malice.

A variety of factors may exhibit a legally sufficient degree of cold-bloodedness or aggravated recklessness to support the jury's finding that the defendant's conduct should be penalized as first-degree murder under the extreme indifference statute. The nature, duration and intensity of the actor's culpable state of mind, his manner of killing, his relationship to the victim(s), and the presence or absence of mitigating factors—may all affect a jury's determination of whether the extreme indifference statute fits the facts of a particular case.

We reverse the district court rulings, and remand both cases with directions to reinstate the extreme indifference counts in the informations.

Auman v. People

Supreme Court of Colorado

109 P.3d 647 (Colo. 2005)

Auman was convicted of felony murder for her role in an alleged burglary which resulted in the shooting death of a Denver police officer.

Auman had rented a room at an eleven-bedroom lodge (the Lodge) in Buffalo Creek, Colorado and had dated another Lodge tenant, Shawn Cheever, while she was there. Approximately one week before the alleged burglary, Auman learned that Cheever no longer wanted to continue his relationship with her.

Auman made plans to move out of the Lodge and to move in with her friend, Demetria Soriano, at Soriano's apartment in southeast Denver. In the process of moving her things out, Auman and the others with her broke the padlock to Cheever’s room, and removed some of his belongings as well as some of Auman's things which were also in Cheever's room.

After loading the items into two cars they had driven to the Lodge, the group drove away in their separate cars. When the police attempted to stop the car that Auman was riding in, Matthew Jaehnig, the driver of that car, led law enforcement officers on a high-speed chase into Denver. During this chase, and while Auman held the steering wheel, Jaehnig shot at an officer's car with an assault rifle. He then drove to the apartment complex to which Auman was moving.

Upon reaching the apartment complex, police officers saw Auman and Jaehnig run into a small alcove of the complex, and, shortly thereafter, Auman surrendered to police. She had been under arrest for approximately five minutes when a Denver police officer, Bruce VanderJagt, who was searching for Jaehnig, looked around the corner of the alcove and was shot and killed by Jaehnig. In the period between her arrest and the fatal shooting, Auman did not tell police, despite their repeated questions, that she knew that Jaehnig was probably still cornered in the alcove and that he was armed with an assault rifle.

A conviction for the crime of felony murder requires that a death occur in the commission of a specifically enumerated felony. Here, Auman's conviction for second degree burglary served as the predicate felony for her felony-murder conviction. Second degree burglary requires that a defendant possess the intent to commit a crime when he or she breaks an entrance into a building or occupied structure. The People argued that Auman committed felony murder because she was guilty of burglary and because [the officer’s] death was caused by Jaehnig in immediate flight from that burglary. The People argued that Auman's arrest did not terminate her liability for felony murder while Jaehnig's immediate flight continued and while she lied to and withheld information from police.

The People charged that Auman intended to commit the crime of theft when she, and the others with her, broke the lock and entered Cheever's room. Hence, the jury's understanding of the definition of theft formed an essential element of Auman's conviction for felony murder.

On its face, Colorado's felony-murder statute is broad in scope. The words of the statute provide that if a person commits a specifically enumerated felony and an innocent party dies during that felony or during immediate flight from that felony, then that person commits felony murder:

A person commits the crime of murder in the first degree if: ... [a]cting either alone or with one or more persons, he [or she] commits or attempts to commit ... burglary ... and, in the course of or in furtherance of the crime that he [or she] is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by anyone. § 18–3–102(1)(b), 6 C.R.S. (1999).

Under this statute, a defendant who commits a predicate felony may be liable when death occurs during either of two events, namely: (1) “in the course of or in furtherance of the crime that [the defendant] is committing or attempting to commit;” or, (2) “in the course of or in furtherance ... of immediate flight therefrom.”

It does not matter that the defendant had no intent to kill or that the defendant did not cause the killing. Liability arises from the defendant's participation in, and intent to commit, one of the specifically named, or predicate, felonies. According to the felony-murder doctrine, the intent to kill is imputed from the participant's intent to commit the predicate felony.

Here, we address only whether the death was caused in the course of or in furtherance of immediate flight from the predicate felony, which in this case was burglary.

According to the plain language of the immediate flight provision of the statute, there are four limitations on liability for felony murder when a death occurs during flight from the predicate felony.

First, the flight from the predicate felony must be “immediate,” which requires a close temporal connection between the predicate felony, the flight, and the resulting death. 

Second, the word “flight” limits felony-murder liability in such cases to those circumstances in which death is caused while a participant is escaping or running away from the predicate felony. 

Third, the death must occur either “in the course of” or “in furtherance of” immediate flight, so that a defendant commits felony murder only if a death is caused during a participant's immediate flight or while a person is acting to promote immediate flight from the predicate felony. 

Fourth, the immediate flight must be “therefrom,” indicating that the flight must be from the predicate felony, as opposed to being from some other episode or event.

The plain language of our statute supports the legal principle that a co-participant in a predicate felony may be liable for felony murder even after arrest while another participant remains in immediate flight. The statute deems conduct as murder when one participates in the predicate felony and a death is caused in the course of or in furtherance of “immediate flight,” which, by its terms, is not limited to the flight of any particular participant. The felony-murder statute regards all participants as liable for felony murder when a person acts “with one or more persons” in the commission of a specifically enumerated felony and death is “caused by anyone” “in the course of or in furtherance ... of immediate flight” from the predicate felony. 

Just as important as what the statute says is what the statute does not say. As it is worded, the statute does not differentiate between liability for participants in the predicate felony who are in immediate flight and those who are not; nor does the statute state that some participants may be liable for a death that occurs in the course of or in furtherance of immediate flight but that others may not. The statute also does not state that if a co-participant's actual flight ends as a result of arrest, and another participant remains in flight, that immediate flight has ended for the co-participant under arrest. Most importantly, the statute does not say that a co-participant may be liable for felony murder for only those deaths caused during that co-participant's immediate flight. We should not construe these omissions by the General Assembly as unintentional.

We next turn to the statutory affirmative defense to determine how it affects our analysis of this statutory crime. The General Assembly created an affirmative defense to felony murder that allows a defendant to avoid felony-murder prosecution if “he not only had nothing to do with the killing itself, but was unarmed and had no reason to believe that any of his confederates were armed or intended to engage in any conduct dangerous to life.” § 40–3–102. The affirmative defense also provides that if a defendant discovers that a co-participant is armed or dangerous during the commission of the crime or in flight therefrom, the defendant may obtain the benefit of this defense by immediately disengaging from either the predicate felony or the flight.

Like the plain language of the statutory offense, the affirmative defense provides no support for the theory that arrest, by itself, terminates a co-participant's liability for felony murder as a matter of law. This conclusion, however, does not mean a jury should not consider a co-participant's arrest as a factor in deciding whether the prosecution has satisfied its burden of proving that the affirmative defense does not apply.

[Reversed on other grounds]

People v. Phillips

California Supreme Court

64 Cal.2d 574 (1966)

TOBRINER, J.

Defendant, a doctor of chiropractic, appeals from a judgment of the Superior Court of Los Angeles County convicting him of second degree murder in connection with the death from cancer of one of his patients. We reverse solely on the ground that the trial court erred in giving a felony-murder instruction.

Linda Epping died on December 29, 1961, at the age of 8, from a rare and fast-growing form of eye cancer. Linda's mother first observed a swelling over the girl's left eye in June of that year. The doctor whom she consulted recommended that Linda be taken to Dr. Straatsma, an opthalmologist at the UCLA Medical Center. On July 10th Dr. Straatsma first saw Linda; on July 17th the girl, suffering great pain, was admitted to the center. Dr. Straatsma performed an exploratory operation and the resulting biopsy established the nature of the child's affliction.

Dr. Straatsma advised Linda's parents that her only hope for survival lay in immediate surgical removal of the affected eye. The Eppings were loath to permit such surgery, but on the morning of July 21st Mr. Epping called the hospital and gave his oral consent. The Eppings arrived at the hospital that afternoon to consult with the surgeon. While waiting they encountered a Mrs. Eaton who told them that defendant had cured her son of a brain tumor without surgery.

Mrs. Epping called defendant at his office. According to the Eppings, defendant repeatedly assured them that he could cure Linda without surgery. They testified that defendant urged them to take Linda out of the hospital, claiming that the hospital was "an experimental place," that the doctors there would use Linda as "a human guinea pig" and would relieve the Eppings of their money as well.

The Eppings testified that in reliance upon defendant's statements they took Linda out of the hospital and placed her under defendant's care. They stated that if defendant had not represented to them that he could cure the child without surgery and that the UCLA doctors were only interested in experimentation, they would have proceeded with the scheduled operation. The prosecution introduced medical testimony which tended to prove that if Linda had undergone surgery on July 21st her life would have been prolonged or she would have been completely cured.

Defendant treated Linda from July 22 to August 12, 1961. He charged an advance fee of $500 for three months' care as well as a sum exceeding $200 for pills and medicines. On August 13th Linda's condition had not improved; the Eppings dismissed defendant.

Later the Eppings sought to cure Linda by means of a Mexican herbal drug known as yerba mansa and, about the 1st of September, they placed her under the care of the Christian Science movement. They did not take her back to the hospital for treatment.

Defendant testified that he knew that he could not cure cancer, that he did not represent to the Eppings that he could do so, that he urged them to return Linda to the hospital and that he agreed to treat her only when it became clear that the Eppings would never consent to surgery. He further testified that in administering treatment he sought to build up Linda's general health and so prolong her life. He insisted that he had never purported to "treat" cancer as such, but only to give "supportive" care to the body as a whole. He variously described his purpose as being "to build up her resistance," "assisting the body to overcome its own deficiencies" and "supporting the body defenses."

As we have noted, the trial court gave an instruction on felony murder; we point out that, although defendant could, of course, be prosecuted for grand theft, such a crime, not an inherently dangerous felony, does not support an instruction on felony murder. The giving of that instruction caused defendant prejudice and compels reversal. Initially, however, we dispose of defendant's argument that the prosecution failed to establish such causal relationship between defendant's conduct and the death as is requisite to his criminal responsibility.

Dr. Straatsma testified with "reasonable medical certainty" that the performance of the operation on July 21st would have extended Linda's life by a minimum of two months. He also gave his opinion that surgery on that date could have effected a complete cure.

The evidence established that the tumor grew dramatically during the period in which Linda submitted to defendant's ministrations; Dr. Straatsma testified that her prospects dimmed rapidly with the passage of time. The jury could properly have concluded that defendant's conduct in preventing the operation during his treatment measurably reduced the period by which surgery would have extended Linda's life and significantly diminished her chances for a complete recovery.

Defendant challenges the propriety of the trial court's instructions to the jury. The court gave the following tripartite instruction on murder in the second degree:

"[T]he unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree:"

"(1) If the killing proximately results from an unlawful act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another, or"

"(2) If the circumstances proximately causing the killing show an abandoned and malignant heart, or"

"(3) If the killing is done in the perpetration or attempt to perpetrate a felony such as Grand Theft. If a death occurs in the perpetration of a course of conduct amounting to Grand Theft, which course of conduct is a proximate cause of the unlawful killing of a human being, such course of conduct constitutes murder in the second degree, even though the death was not intended."

The third part of this instruction rests upon the felony-murder rule and reflects the prosecution's theory that defendant's conduct amounted to grand theft by false pretenses in violation of Penal Code section 484.

Despite defendant's contention that the Penal Code does not expressly set forth any provision for second degree felony murder and that, therefore, we should not follow any such doctrine here, the concept lies imbedded in our law. [T]he cases hold that the perpetration of some felonies, exclusive of those enumerated in Penal Code section 189, may provide the basis for a murder conviction under the felony-murder rule.

We have held, however, that only such felonies as are in themselves "inherently dangerous to human life" can support the application of the felony-murder rule. We have ruled that in assessing such peril to human life inherent in any given felony "we look to the elements of the felony in the abstract, not the particular 'facts' of the case."

We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. Indeed, the rule itself has been abandoned by the courts of England, where it had its inception. It has been subjected to severe and sweeping criticism. No case to our knowledge in any jurisdiction has held that because death results from a course of conduct involving a felonious perpetration of a fraud, the felony-murder doctrine can be invoked.

Admitting that grand theft is not inherently dangerous to life, the prosecution asks us to encompass the entire course of defendant's conduct so that we may incorporate such elements as would make his crime inherently dangerous. In so framing the definition of a given felony for the purpose of assessing its inherent peril to life the prosecution would abandon the statutory definition of the felony as such and substitute the factual elements of defendant's actual conduct. In the present case the Attorney General would characterize that conduct as "grand theft medical fraud," and this newly created "felony," he urges, clearly involves danger to human life and supports an application of the felony-murder rule.

To fragmentize the "course of conduct" of defendant so that the felony-murder rule applies if any segment of that conduct may be considered dangerous to life would widen the rule beyond calculation. It would then apply not only to the commission of specific felonies, which are themselves dangerous to life, but to the perpetration of any felony during which defendant may have acted in such a manner as to endanger life.

The proposed approach would entail the rejection of our holding in People v. Williams, 63 Cal. 2d 452. That case limited the felony-murder doctrine to such felonies as were themselves inherently dangerous to life. That decision eschews the prosecution's present sweeping concept because, once the Legislature's own definition is discarded, the number or nature of the contextual elements which could be incorporated into an expanded felony terminology would be limitless. We have been, and remain, unwilling to embark on such an uncharted sea of felony murder.

The felony-murder instruction should not, then, have been given; its rendition, further, worked prejudice upon defendant. It withdrew from the jury the issue of malice, permitting a conviction upon the bare showing that Linda's death proximately resulted from conduct of defendant amounting to grand theft. The instruction as rendered did not require the jury to find either express malice or the implied malice which is manifested in an "intent with conscious disregard for life to commit acts likely to kill."

The instruction thus relieved the jury of the necessity of finding one of the elements of the crime of murder. Even if the evidence could have supported a finding of implied malice, the instruction failed to require the jury so to determine. "[D]efendants have a constitutional right to have the jury determine every material issue presented by the evidence..." The denial of defendant's right to a determination by the jury as to whether he acted with malice resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section 4 1/2.

Hines v. State

Supreme Court of Georgia

578 S.E.2d 868 (Ga. 2003)

FLETCHER, Chief Justice.

While hunting, Robert Lee Hines mistook his friend Steven Wood for a turkey and shot him dead. A jury convicted Hines of felony murder based on the underlying crime of possession of a firearm by a convicted felon, but acquitted him of felony murder based on the underlying felony of misuse of a firearm while hunting. On appeal, Hines contends that the jury's verdict is invalid because the jury cannot acquit him of killing the victim by misusing a firearm, yet convict him of killing the victim by possession of the same firearm, without having made inconsistent factual findings. Because Georgia does not recognize an inconsistent verdict rule and Hines's other enumerations are without merit, we affirm.

Taken in the light most favorable to the jury's verdict of guilty, the evidence at trial showed that, late in the afternoon of April 8, 2001, Hines and some of his friends and relatives went turkey hunting. They split into two groups, with Hines and his friend Randy Stoker hunting together in one area, and the victim, the victim's wife, and Hines's son hunting in a different area, approximately one-fourth mile away. As the sky was growing dark, Hines heard a turkey gobble, "saw it fan out and shot." Hines's shot went through heavy foliage and hit the victim approximately eighty feet away. Immediately thereafter, the victim's wife screamed, "You shot Wood." Hines and his son went for help, but the victim died before help could arrive.

On his return, Hines tried to convince his son and Stoker to take responsibility for the shooting. They both refused. The entire group, however, agreed to say that they did not know who had shot Wood. Hines removed his camouflage clothing and hid his shotgun and hunting gear before the police arrived.

Two days later, Hines admitted he had shot Wood and showed the police where he had hidden his shotgun. Hines's son showed the police where he had hidden Hines's hunting clothing and gear, which included unopened cans of beer. An open beer can and foam insulation wrap that belonged to Hines were found near where Hines had fired the fatal shot.

We conclude that the evidence at trial was sufficient for a reasonable trier of fact to have found Hines guilty beyond a reasonable doubt of the crimes for which he was convicted.

The jury acquitted Hines of felony murder based on misuse of a firearm while hunting and convicted him of felony murder based on possession of a firearm by a convicted felon. Hines contends that the verdict is void because the jury made inconsistent determinations that he did not cause Wood's death by misusing a firearm, but did cause his death by possessing the same firearm.

Georgia does not recognize an inconsistent verdict rule, which would permit a defendant to challenge the factual findings underlying a guilty verdict on one count as inconsistent with the findings underlying a not guilty verdict on a different count. A conviction on one count and acquittal on another related count may reflect a compromise or lenity by the jury rather than inconsistent factual conclusions, and Georgia courts generally will not look behind the jury's decision to convict on certain counts and acquit on other counts. Therefore, Hines's enumeration is without merit.

Hines contends that a convicted felon's possession of a firearm while turkey hunting cannot be one of the inherently dangerous felonies required to support a conviction for felony murder. "The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human life." A felony is "inherently dangerous" when it is "`dangerous per se'" or "'by its circumstances create[s] a foreseeable risk of death.'" Depending on the facts, possession of a firearm by a convicted felon can be an inherently dangerous felony.

In Ford v. State, the defendant was a convicted felon who was unloading a handgun when it accidentally discharged, went through the floor, and killed an occupant of the apartment below. A jury convicted Ford for felony murder based on his felonious possession of a firearm. This Court reversed, finding that, because no evidence showed the defendant knew there was an apartment below him or that the victim was present, his possession of a firearm could not support a conviction for felony murder.

In contrast to Ford, Hines intentionally fired his shotgun intending to hit his target. He had been drinking before he went hunting, and there was evidence that he had been drinking while hunting. He knew that other hunters were in the area and was unaware of their exact location. He also knew that other people visited the area in which he was hunting. He took an unsafe shot at dusk, through heavy foliage, at a target eighty feet away that he had not positively identified as a turkey. Under these circumstances, we conclude that Hines's illegal possession of a firearm created a foreseeable risk of death. Accordingly, Hines's violation of the prohibition against convicted felons possessing firearms was an inherently dangerous felony that could support a felony murder conviction.

Judgment affirmed.

A glance at the California Penal Code Section linked above reveals what the Phillips Court assumed: Grand Theft is not one of the felonies listed (or enumerated) in California's definition of murder. It is important to see, therefore, why it even considers the question of whether Grand Theft can be charged as a predicate to felony murder. The Court treats second degree murder as a catchall: All other kinds of murder, including all felony murders, are murders of the second degree. But, the Court reasons, only the intent to commit an inherently dangerous felony can supply the necessary culpability to establish malice aforethought. Why does the Court conclude that stealing money from a family whose child has a rare cancer not sufficiently culpable to merit imposition of the felony murder rule?

In Hines, the felony murder statute (not quoted by the Georgia Court) states (then, as it does now): "(c) A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice." While this seems to imply that any felony will do, the Georgia courts have held otherwise. See, e.g., Ford v. Georgia, "It is true that this statute does not specify which felonies may predicate a felony murder conviction. Nonetheless, the statute is no more than a codification of the felony murder doctrine under the common law. Its purpose is the same: to deter the commission of a dangerous or life-threatening felony." How does the Court conclude that the defendant committed such a felony? Can you imagine a felony, under the Court's test, that would not be inherently dangerous?

State v. Sturdivant

Supreme Court of Florida

94 So.3d 434 (2012)

The felony-murder statute in Florida provides that first-degree murder includes: “The unlawful killing of a human being ... [w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any ... [a]ggravated child abuse....” § 782.04(1)(a) 2.h., Fla. Stat. (2007). In this case, Sturdivant “was indicted by a grand jury for first-degree felony murder and aggravated child abuse. As to the felony-murder charge, the indictment alleged that [Sturdivant] killed the victim while committing aggravated child abuse by slapping the [two-year-old] victim into a wall. The allegation was the same for the aggravated child abuse charge.” [T]he State, out of an abundance of caution, also filed an information charging second-degree murder on the same allegation as had been made in the indictment. The first-degree and second-degree murder cases were consolidated.

Following the trial, the jury returned verdicts finding Sturdivant guilty of first-degree felony murder, second-degree murder, and aggravated child abuse.

On appeal, Sturdivant argued that he could not be convicted of both the first-degree felony murder and the underlying felony of aggravated child abuse because of the merger doctrine.

The merger doctrine is a principle of statutory construction rather than a principle of constitutional law. The origins of the merger doctrine have been explained as follows:

Conceived in the nineteenth century, the merger doctrine was developed ... as a shorthand explanation for the conclusion that the felony-murder rule should not be applied in circumstances where the only underlying (or “predicate”) felony committed by the defendant was assault. The name of the doctrine derived from the characterization of the assault as an offense that “merged” with the resulting homicide.

With respect to the merger doctrine being one of preserving legislative intent, the Tennessee Supreme Court has explained:

Courts have generally declined to hold that the merger doctrine implicates any principles of constitutional law. Instead, courts have viewed the merger doctrine as a principle for preserving legislative intent and, more specifically, as a principle that preserves “some meaningful domain in which the Legislature's careful graduation of homicide offenses can be implemented.”

The court observed that “[t]he doctrine has been applied largely in those states where the felony murder statute fails to specifically list the felonies capable of supporting a felony murder conviction.”

In a prior decision, this Court also recognized this distinction.  In Robles v. State, 188 So.2d 789, 792 (Fla.1966), this Court distinguished between a felony-murder statute that provided that “any” felony could serve as a basis for felony murder and an enumerated felony-murder statute, such as Florida's. In that case, the defendant asserted that the facts of the case—where the victim was killed during the course of a burglary—were not appropriate for the application of the felony-murder rule. The defendant directed the Court's attention to a line of New York cases holding that the felony-murder rule does not apply unless the felony is separate and independent from the homicide and where the underlying felony is not separate and independent, the underlying felony and the homicide merge. This Court disagreed, noting the difference between the general catch-all felony-murder statute in New York and the enumerated felony-murder statute in Florida, which listed burglary as an offense on which felony-murder can be predicated:

As appellant acknowledges, the concern of the New York court, which was to preserve the integrity of the statutory degrees of homicide, resulted from the fact that the statute of that state makes a homicide committed in the perpetration of any felony first degree murder. Since the phrase “any felony” is broad enough to include even the aggravated assault that is usually involved in any homicide, the result would be that substantially every homicide would constitute first degree murder.

It was to avoid this result that the New York court adopted the doctrine that the supporting felony had to be independent of the homicide...

It is obvious that the problem that motivated the New York court to adopt the above rule cannot exist under a statute like Florida's, which limits the felony-murder rule to homicides committed in the perpetration of specified felonies, not including assault in any of its forms.

Accordingly, this Court concluded that the concern motivating the New York courts—preserving the integrity of statutory degrees of homicide—did not compel the same result in Florida.

Florida's felony-murder statute specifically lists the underlying offenses that can justify a conviction for first-degree felony murder. Aggravated child abuse is one of the enumerated felonies in the statute. The felony-murder statute provides that first-degree murder includes: “The unlawful killing of a human being ... [w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any ... [a]ggravated child abuse....” § 782.04(1)(a) 2.h., Fla. Stat. Aggravated child abuse is defined as follows:

“Aggravated child abuse” occurs when a person:

(a) Commits aggravated battery on a child;

(b) Willfully tortures, maliciously punishes, or willfully and unlawfully cages a child; or

(c) Knowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child.

§ 827.03(2), Fla. Stat. (2007). The statute defines “maliciously” as follows:

For purposes of this section, “maliciously” means wrongfully, intentionally, and without legal justification or excuse. Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury.

§ 827.03(4), Fla. Stat.

Sturdivant argues that the merger doctrine should apply in his case, which would preclude his felony-murder conviction being based on aggravated child abuse consisting of a single violent act. However, we note that the merger doctrine “has been applied largely in those states where the felony murder statute fails to specifically list the felonies capable of supporting a felony murder conviction. Where a ‘legislature explicitly states that a particular felony is a predicate felony for felony-murder, no “merger” occurs.’” Here, the Florida Legislature has specifically listed aggravated child abuse as a predicate offense that will support a conviction for first-degree felony murder. Accordingly, we conclude that the merger doctrine does not apply where the underlying felony is the enumerated felony of aggravated child abuse.

People v. Chun

California Supreme Court

203 P.3d 425 (Cal. 2009)

In this murder case, the trial court instructed the jury on second degree felony murder with shooting at an occupied vehicle under Penal Code section 246 the underlying felony.† We granted review to consider various issues concerning the validity and scope of the second degree felony-murder rule.

Section 187, subdivision (a), defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.” …Murder is divided into first and second degree murder. (§ 189.) “Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder.”

Critical for our purposes is that the crime of murder, as defined in section 187, includes, as an element, malice. Section 188 defines malice. It may be either express or implied. It is express “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” It is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” This definition of implied malice is quite vague. Trial courts do not instruct the jury in the statutory language of an abandoned and malignant heart. Doing so would provide the jury with little guidance. “The statutory definition of implied malice has never proved of much assistance in defining the concept in concrete terms.” Accordingly, the statutory definition permits, even requires, judicial interpretation. We have interpreted implied malice as having “both a physical and a mental component. The physical component is satisfied by the performance of ‘an act, the natural consequences of which are dangerous to life.’ The mental component is the requirement that the defendant ‘knows that his conduct endangers the life of another and ... acts with a conscious disregard for life.’”

A defendant may also be found guilty of murder under the felony-murder rule. The felony-murder rule makes a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state.  The rule has two applications: first degree felony murder and second degree felony murder. We have said that first degree felony murder is a “creation of statute” (i.e., § 189) but, because no statute specifically describes it, that second degree felony murder is a “common law doctrine.” First degree felony murder is a killing during the course of a felony specified in section 189, such as rape, burglary, or robbery. Second degree felony murder is “an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189....”

In [People v.] Patterson, Justice Kennard explained the reasoning behind and the justification for the second degree felony-murder rule: “The second degree felony-murder rule eliminates the need for the prosecution to establish the mental component [of conscious-disregard-for-life malice]. The justification therefor is that, when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved. The physical requirement, however, remains the same; by committing a felony inherently dangerous to life, the defendant has committed ‘an act, the natural consequences of which are dangerous to life’ thus satisfying the physical component of implied malice.”

The second degree felony-murder rule is venerable. It “has been a part of California's criminal law for many decades. But some former and current members of this court have questioned the rule's validity because no statute specifically addresses it. In line with these concerns, defendant argues that the second degree felony-murder rule is invalid on separation of powers grounds. As he points out, we have repeatedly said that “‘the power to define crimes and fix penalties is vested exclusively in the legislative branch.’ Defendant asks rhetorically, “How, then, in light of the statutory abrogation of common law crimes and the constitutional principle of separation of powers, does second degree felony murder continue to exist when this court has repeatedly acknowledged that the crime is a judicial creation?”

This court has never directly addressed these concerns and this argument, or explained the statutory basis of the second degree felony-murder rule. We do so now. We agree … that there are no nonstatutory crimes in this state. Some statutory or regulatory provision must describe conduct as criminal in order for the courts to treat that conduct as criminal. But, as we explain, the second degree felony-murder rule, although derived from the common law, is based on statute; it is simply another interpretation of section 188's abandoned and malignant heart language.

Many provisions of the Penal Code were enacted using common law terms that must be interpreted in light of the common law. For example, section 484 defines theft as “feloniously” taking the property of another. The term “feloniously”—which has little meaning by itself—incorporates the common law requirement that the perpetrator must intend to permanently deprive the owner of possession of the property. Accordingly, we have looked to the common law to determine the exact contours of that requirement. Thus, the intent-to-permanently-deprive requirement, although nonstatutory in the limited sense that no California statute uses those words, is based on statute. The murder statutes are similarly derived from the common law. “It will be presumed ... that in enacting a statute the Legislature was familiar with the relevant rules of the common law, and, when it couches its enactments in common law language, that its intent was to continue those rules in statutory form.”

Even conscious-disregard-for-life malice is nonstatutory in the limited sense that no California statute specifically uses those words. But that form of implied malice is firmly based on statute; it is an interpretation of section 188's abandoned and malignant heart language. Similarly, the second degree felony-murder rule is nonstatutory in the sense that no statute specifically spells it out, but it is also statutory as another interpretation of the same “abandoned and malignant heart” language.  We have said that the “felony-murder rule eliminates the need for proof of malice in connection with a charge of murder, thereby rendering irrelevant the presence or absence of actual malice, both with regard to first degree felony murder and second degree felony murder.” But analytically, this is not precisely correct. The felony-murder rule renders irrelevant conscious-disregard-for-life malice, but it does not render malice itself irrelevant. Instead, the felony-murder rule “acts as a substitute” for conscious-disregard-for-life malice. It simply describes a different form of malice under section 188. “The felony-murder rule imputes the requisite malice for a murder conviction to those who commit a homicide during the perpetration of a felony inherently dangerous to life.”

Although today we reaffirm the constitutional validity of the long-standing second degree felony-murder rule, we also recognize that the rule has often been criticized and, indeed, described as disfavored. We have repeatedly stated, as recently as 2005, that the rule “deserves no extension beyond its required application.” For these reasons, although the second degree felony-murder rule originally applied to all felonies, this court has subsequently restricted its scope in at least two respects to ameliorate its perceived harshness.

First, the court restricted the felonies that could support a conviction of second degree murder, based upon a felony-murder theory, to those felonies that are “inherently dangerous to human life.” Whether a felony is inherently dangerous is determined from the elements of the felony in the abstract, not the particular facts. This restriction is not at issue here. Section 246 makes it a felony to “maliciously and willfully discharge a firearm at an ... occupied motor vehicle....” In Hansen, we held that shooting at an “inhabited dwelling house” under section 246 is inherently dangerous even though the inhabited dwelling house does not have to be actually occupied at the time of the shooting. That being the case, shooting at a vehicle that is actually occupied clearly is inherently dangerous.

But the second restriction—the “merger doctrine”—is very much at issue. The merger doctrine developed due to the understanding that the underlying felony must be an independent crime and not merely the killing itself. Thus, certain underlying felonies “merge” with the homicide and cannot be used for purposes of felony murder. The specific question before us is how to apply the merger doctrine. The Court of Appeal divided on the question and on how to apply our precedents. But the majority and dissent agreed on one thing—that the current state of the law regarding merger is “muddled.” We agree that the scope and application of the merger doctrine as applied to second degree murder needs to be reconsidered

The merger doctrine arose in the seminal case of [People v. Ireland] and hence sometimes is called the “Ireland merger doctrine.” In Ireland, the defendant shot and killed his wife, and was convicted of second degree murder. The trial court instructed the jury on second degree felony murder with assault with a deadly weapon the underlying felony. We held the instruction improper, adopting the “so-called ‘merger’ doctrine” that had previously been developed in other jurisdictions. We explained our reasons: “[T]he utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule ‘beyond any rational function that it is designed to serve. To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault—a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.”

[The Court then tracked its long history of felony murder decisions, detailing the rule it adopted in People v. Robertson, 95 P.3d 872 (2004) and People v. Randle, 111 P.3d 987 (2005) that an assaultive felony does not merge with a killing – and can thus form the basis of a felony murder prosecution – if the assault was carried out for an independent felonious purpose. For example in Robertson, the defendant “claimed that he fired into the air in order to frighten away several men who were burglarizing his car.” The Court concluded in that case that “the merger doctrine did not bar a felony murder prosecution.” But the independent felonious purpose doctrine remained controversial and, after years of criticism, the Court chose Chun as the case to renounce it]

To avoid the anomaly of putting a person who merely intends to frighten the victim in a worse legal position than the person who actually intended to shoot at the victim, and the difficult question of whether and how the jury should decide questions of merger, we need to reconsider our holdings in Robertson and Randle. When the underlying felony is assaultive in nature, such as a violation of section 246, we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction. An “assaultive” felony is one that involves a threat of immediate violent injury. In determining whether a crime merges, the court looks to its elements and not the facts of the case. Accordingly, if the elements of the crime have an assaultive aspect, the crime merges with the underlying homicide even if the elements also include conduct that is not assaultive. For example, in People v. Smith, 678 P.2d 886 (1984) the court noted that child abuse under section 273(a) “includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect.” Looking to the facts before it, the court decided the offense was “of the assaultive variety,” and therefore merged. It reserved the question whether the nonassaultive variety would merge. Under the approach we now adopt, both varieties would merge. This approach both avoids the necessity of consulting facts that might be disputed and extends the protection of the merger doctrine to the potentially less culpable defendant whose conduct is not assaultive.

This conclusion is also consistent with our repeatedly stated view that the felony-murder rule should not be extended beyond its required application. We do not have to decide at this point exactly what felonies are assaultive in nature, and hence may not form the basis of a felony-murder instruction, and which are inherently collateral to the resulting homicide and do not merge. But shooting at an occupied vehicle under section 246 is assaultive in nature and hence cannot serve as the underlying felony for purposes of the felony-murder rule.

The merger doctrine discussed in this section can be at odds with the inherently dangerous felony doctrine discussed in the previous section. For example, assault with a deadly weapon is an inherently dangerous felony under almost any test. But does it merge with the killing? 

The California Court in Chun would certainly say so. Why? What is the problem, precisely, with allowing assaultive felonies to form the basis of felony murder? In Sturdivant the Florida Court says that courts apply the merger doctrine to "preserv[e] the integrity of statutory degrees of homicide". How so? And why does the same court find that it will not apply the merger doctrine to prevent a felony murder prosecution based on felony child abuse? Isn't that exactly the kind of threat to the statutory degrees of homicide that the merger doctrine exists to combat?

State v. Canola

Supreme Court of New Jersey

374 A.2d 20 (N.J. 1977)

The facts of this case are adequately stated in the opinion of the Appellate Division. For purposes of this determination they may be summarized as follows. The owner of a jewelry store and his employee, in an attempt to resist an armed robbery, engaged in a physical skirmish with one of the four robbers. A second conspirator, called upon for assistance, began shooting, and the store owner returned the gunfire. Both the owner and the felon, one Lloredo, were fatally shot in the exchange, the latter by the firearm of the owner.

Defendant and two others were indicted on two counts of murder, one count of robbery and one count of having been armed during the robbery. The murder counts were based on the deaths, respectively, of the robbery victim and the co-felon. After trial on the murder counts defendant was found guilty on both and was sentenced to concurrent terms of life imprisonment. The Appellate Division unanimously affirmed the conviction for the murder of the robbery victim, and this court denied a petition for certification addressed thereto. However, when the Appellate Division majority upheld the trial court's denial of a motion to dismiss the count addressed to the homicide of the co-felon, Judge Handler dissented.

Conventional formulations of the felony murder rule would not seem to encompass liability in this case. As stated by Blackstone about the time of the American Revolution, the rule was: "And if one intends to do another felony, and undesignedly kills a man, this is also murder." 4 Blackstone, Commentaries 200-201; and see The State v. Cooper, 13 N.J.L. 361, 370 (Sup. Ct. 1833); State v. Madden, 61 N.J. 377, 384 (1972). In such case the felonious intent supplies the malice requisite for murder. A recent study of the early formulations of the felony murder rule by such authorities as Lord Coke, Foster and Blackstone and of later ones by Judge Stephen and Justice Holmes concluded that they were concerned solely with situations where the felon or a confederate did the actual killing.

The precise issue in the present case is whether a broader concept than the foregoing – specifically, liability of a felon for the death of a co-felon effected by one resisting the felony – is required by the language of our statute applicable to the general area of felony murder. N.J.S.A. 2A:113-1. This reads:

If any person, in committing or attempting to commit arson, burglary, kidnapping, rape, robbery, sodomy or any unlawful act against the peace of this State, of which the probable consequences may be bloodshed, kills another, or if the death of anyone ensues from the committing or attempting to commit any such crime or act; or if any person kills a judge, magistrate, sheriff, coroner, constable or other officer of justice, either civil or criminal, of this state, or a marshal or other officer of justice, either civil or criminal, of the United States, in the execution of his office or duty, or kills any of his assistants, whether specially called to his aid or not, endeavoring to preserve the peace or apprehend a criminal, knowing the authority of such assistant, or kills a private person endeavoring to suppress an affray, or to apprehend a criminal, knowing the intention with which such private person interposes, then such person so killing is guilty of murder.

The Appellate Division majority was of the view that the above-emphasized portion of the statute, referred to by it as the "ensues clause," compelled the result it arrived at. It said:

We think it is clear that the clause was not intended to be mere surplusage where it appears that the other provisions of the statute, standing alone, embody the concept of felony murder under the common law. Such an interpretation would violate one of the cardinal rules of statutory construction that full force and effect must be given, if possible, to every word, clause and sentence of a statute.

In our view the statute indicates an intention on the part of the Legislature to extend criminal responsibility beyond that imposed upon a felon at common law and to hold liable all participants in an armed robbery for deaths which occur during the commission of the crime.

It is clearly the majority view throughout the country that, at least in theory, the doctrine of felony murder does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of one other than the defendant or those associated with him in the unlawful enterprise. This rule is sometimes rationalized on the "agency" theory of felony murder.

A contrary view, which would attach liability under the felony murder rule for any death proximately resulting from the unlawful activity – even the death of a co-felon – notwithstanding the killing was by one resisting the crime, does not seem to have the present allegiance of any court.

To be distinguished from the situation before us here, and from the generality of the cases discussed above, are the so-called "shield" cases. The first of these were the companion cases of Taylor v. State, 41 Tex. Cr. R. 564, (Cr. App. 1900). In attempting to escape after robbing a train, defendants thrust the brakeman in front of them as a shield, as a result of which he was fatally shot by law officers. The court had no difficulty in finding defendants guilty of murder. The court in Taylor noted the correctness of the Campbell case doctrine that a person could not be held liable for homicide unless the act is either actually or constructively committed by him, but indicated it was inapplicable to a case where defendants forced deceased to occupy a place of danger in order that they might carry out the crime. The conduct of the defendants in cases such as these is said to reflect "express malice," justifying a murder conviction.

Reverting to our immediate task here, it is to determine whether our own statute necessarily mandates the proximate cause concept of felony murder, as thought by the Appellate Division majority. It is fair to assume, initially, that the Legislature had no special reason in 1796 to ordain a rule of felony murder beyond that generally accepted in Anglo-American jurisprudence at the end of the eighteenth century. As above noted, there was then no precedent, either English or American, for holding the felon for killings at the hands of others than the felon himself or those confederated with him – that is to say, the so-called agency rule held sway. But as seen above, the view of the Appellate Division was that the "ensues clause" of N.J.S.A. 2A:113-1 must be deemed to have expanded the culpability of the felon to killings by others not confederated with him, if proximately related to the felonious enterprise, else the clause would be meaningless surplusage in the act. However, other plausible motivations for the ensues clause can be postulated consistent with a legislative intent to adhere to the traditional limitations of the felony murder doctrine.

With such background, and assuming the statute is facially susceptible of the interpretation here advocated by the State, it is appropriate to consider the public policy implications of the proposed doctrine as an extension of prior assumptions in this State as to the proper limitations of the felony murder rule.

Most modern progressive thought in criminal jurisprudence favors restriction rather than expansion of the felony murder rule. A leading text states: "The felony murder rule is somewhat in disfavor at the present time. The courts apply it when the law requires, but they do so grudgingly and tend to restrict its application where the circumstances permit." It has frequently been observed that although the rule was logical at its inception, when all felonies were punishable by death, its survival to modern times when other felonies are not thought to be as blameworthy as premeditated killings is discordant with rational and enlightened views of criminal culpability and liability.

[I]t appears to us regressive to extend the application of the felony murder rule beyond its classic common-law limitation to acts by the felon and his accomplices, to lethal acts of third persons not in furtherance of the felonious scheme. The language of the statute does not compel it, and, as indicated above, is entirely compatible with the traditional limitations of the rule. Tort concepts of foreseeability and proximate cause have shallow relevance to culpability for murder in the first degree. Gradations of criminal liability should accord with degree of moral culpability for the actor's conduct.

It is our judgment that if the course of the law as understood and applied in this State for almost 200 years is to be altered so drastically, it should be by express legislative enactment.

The judgment of the Appellate Division is modified so as to strike the conviction and sentencing of defendant for murder of the co-felon Lloredo.

SULLIVAN, J. (concurring in result only).

The practical result of the majority holding is that even though some innocent person or a police officer be killed during the commission of an armed robbery, the felon would bear no criminal responsibility of any kind for that killing as long as it was not at the hand of the felon or a confederate. The legislative intent, as I see it, is otherwise.

The thrust of our felony murder statute, N.J.S.A. 2A:113-1, is to hold the criminal liable for any killing which ensues during the commission of a felony, even though the felon, or a confederate, did not commit the actual killing. The only exception I would recognize would be the death of a co-felon, which could be classified as a justifiable homicide and not within the purview of the statute.

The Legislature should act promptly to clarify the situation resulting from the majority opinion. If it does not extend the felony murder statute to encompass a killing during the commission of a felony not at the hand of the felon or confederate, it should, at least, provide that the felon be chargeable with manslaughter for such killing (in addition to liability for the felony).

I, therefore, concur in the result but only for the reason stated above.

People v. Washington

Supreme Court of California

44 Cal.Rptr. 442 (1965)

TRAYNOR, Chief Justice.

Defendant appeals from a judgment of conviction entered upon jury verdicts finding him guilty of first degree robbery and first degree murder and fixing the murder penalty at life imprisonment. He was convicted of murder for participating in a robbery in which his accomplice was killed by the victim of the robbery.

Shortly before 10 p. m., October 2, 1962, Johnnie Carpenter prepared to close his gasoline station. He was in his office computing the receipts and disbursements of the day while an attendant in an adjacent storage room deposited money in a vault. Upon hearing someone yell 'robbery,' Carpenter opened his desk and took out a revolver. A few moments later, James Ball entered the office and pointed a revolver directly at Carpenter, who fired immediately, mortally wounding Ball. Carpenter then hurried to the door and saw an unarmed man he later identified as defendant running from the vault with a moneybag in his right hand. He shouted 'Stop.' When his warning was not heeded, he fired and hit defendant who fell wounded in front of the station.

The Attorney General, relying on People v. Harrison, Cal.App.2d 330, contends that defendant was properly convicted of first degree murder. In that case defendants initiated a gun battle with an employee in an attempt to rob a cleaning business. In the cross fire, the employee accidentally killed the owner of the business. The court affirmed the judgment convicting defendants of first degree murder, invoking Commonwealth v. Almeida, 362 Pa. 596, and People v. Podolski, 332 Mich. 508 which held that robbers who provoked gunfire were guilty of first degree murder even though the lethal bullet was fired by a policeman.

Defendant would distinguish the Harrison, Almeida, and Podolski cases on the ground that in each instance the person killed was an innocent victim, not one of the felons. He suggests that we limit the rule of the Harrison case just as the Supreme Courts of Pennsylvania and Michigan have limited the Almeida and Podolski cases by holding that surviving felons are not guilty of murder when their accomplices are killed by persons resisting the felony. A distinction based on the person killed, however, would make the defendant's criminal liability turn upon the marksmanship of victims and policemen. A rule of law cannot reasonably be based on such a fortuitous circumstance. The basic issue therefore is whether a robber can be convicted of murder for the killing of any person by another who is resisting the robbery.

'Murder is the unlawful killing of a human being, with malice aforethought.' Except when the common-law-felony-murder doctrine is applicable, an essential element of murder is an intent to kill or an intent with conscious disregard for life to commit acts likely to kill. The felony-murder doctrine ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony. That doctrine is incorporated in section 189 of the Penal Code, which provides in part: 'All murder . . . committed in the perpetration or attempt to perpetrate . . . robbery . . . is murder of the first degree.' Thus, even though section 189 speaks only of degrees of 'murder,' inadvertent or accidental killings are first degree murders when committed by felons in the perpetration of robbery.

When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen and that the robbery might therefore be regarded as a proximate cause of the killing. Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony. To include such killings within section 189 would expand the meaning of the words 'murder . . . which is committed in the perpetration . . . (of) robbery . . . ' beyond common understanding.

The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. This purpose is not served by punishing them for killings committed by their victims.

It is contended, however, that another purpose of the felony-murder rule is to prevent the commission of robberies. Neither the common-law rationale of the rule nor the Penal Code supports this contention. In every robbery there is a possibility that the victim will resist and kill. The robber has little control over such a killing once the robbery is undertaken as this case demonstrates. To impose an additional penalty for the killing would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the basis of the response by others that the robber's conduct happened to induce. An additional penalty for a homicide committed by the victim would deter robbery haphazardly at best. To 'prevent stealing, (the law) would do better to hang one thief in every thousand by lot.'

A defendant need not do the killing himself, however, to be guilty of murder. He may be vicariously responsible under the rules defining principals and criminal conspiracies. All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design. Moreover, when the defendant intends to kill or intentionally commits acts that are likely to kill with a conscious disregard for life, he is guilty of murder even though he uses another person to accomplish his objective.

Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill. Under such circumstances, 'the defendant for a base, anti-social motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death,'  and it is unnecessary to imply malice by invoking the felony-murder doctrine. To invoke the felony-murder doctrine to imply malice in such a case is unnecessary and overlooks the principles of criminal liability that should govern the responsibility of one person for a killing committed by another.

To invoke the felony-murder doctrine when the killing is not committed by the defendant or by his accomplice could lead to absurd results. Thus, two men rob a grocery store and flee in opposite directions. The owner of the store follows one of the robbers and kills him. Neither robber may have fired a shot. Neither robber may have been armed with a deadly weapon. If the felony-murder doctrine applied, however, the surviving robber could be convicted of first degree murder, even though he was captured by a policeman and placed under arrest at the time his accomplice was killed.

The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. Although it is the law in this state (Pen.Code, § 189), it should not be extended beyond any rational function that it is designed to serve. Accordingly, for a defendant to be guilty of murder under the felony-murder rule the act of killing must be committed by the defendant or by his accomplice acting in furtherance of their common design.

Canola and Washington both raise the question of which deaths that occur in the course of a felony are fairly attrituable to the felons. When the killing is done by the defendant or one of his co-felons, the answer seems clear (at least where the person killed is not one of the felons).

Where the person proximately doing the killing is not one of the defendant's cohorts but is either a law enforcement officer or a third party, things become more complicated. Courts generally treat this as a question of statutory interpretation, looking to whether the legislature adopted an agency theory (the killing must be done by the defendant or one of his agents) or a proximate cause theory (any killing proximately caused by the felony is fairly attributable to all surviving defendants). The language used by the New Jersey legislature cited in Canola could have been written by a law professor -- it supports either reading. Why did the New Jersey high court come to the conclusion that the legislature meant only to hold defendants responsible for those killings done by their agents?

In Washington the California Court also adopts an agency theory, refusing to hold the defendant liable for the killing of his confederate by a victim resisting the robbery. This conclusion is supported by the words of the statute, which states "All murder . . . committed in the perpetration or attempt to perpetrate . . . robbery . . . is murder of the first degree." The action of the victim resisting a robbery was not a murder committed to achieve a robbery; as the Court points out, it was an attempt to thwart a robbery, not to commit one.

But what do you make of the Court's reasoning that "The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit." Isn't the purpose of the felony murder rule to deter robberies by holding robbers strictly liable for any deaths that occur in the course of their crimes?

King v. Commonwealth

Court of Appeals of Virginia

368 S.E.2d 704 (Va. Ct. App. 1988)

COLEMAN, J.

On October 17, 1984, King and his copilot, Mark Lee Bailey, were flying a Beechcraft Bonanza airplane carrying over five hundred pounds of marijuana to the New River Valley airport in Dublin, Virginia. They were flying for Wallace Thrasher, who owned the airplane and ran the drug smuggling operation. King was a licensed pilot; Bailey was not. The two encountered heavy cloud cover and fog near Mt. Airy, North Carolina and apparently became lost. In an effort to navigate through the cloud cover and fog, they flew the plane to a lower altitude in order to follow U.S. Route 52. Bailey was piloting the plane at this time. As Bailey flew, King was examining navigation maps in an attempt to determine the plane's whereabouts. The airplane crashed into Fancy Gap Mountain killing Bailey almost instantly. King was thrown from the plane and survived. King was charged with felony homicide under Code Sec. 18.2-33 for Bailey's death. A jury convicted King of second degree murder under the statute and recommended a six-year penitentiary sentence.

Code Sec. 18.2-33 defines second degree felony homicide: "The killing of one accidentally, contrary to the intention of the parties, while in the prosecution of some felonious act other than those specified in Sections 18.2-31 and 18.2-32, is murder of the second degree and is punishable as a Class 3 felony." This statute and its companion, Sec. 18.2-32, defining first degree felony-murder, codify the common law doctrine of felony-murder. The doctrine was developed to elevate to murder a homicide committed during the course of a felony by imputing malice to the killing. The justification for imputing malice was the theory that the increased risk of death or serious harm occasioned by the commission of a felony demonstrated the felon's lack of concern for human life. The doctrine was originally limited, therefore, to felonies that were inherently or foreseeably dangerous. The purpose of the doctrine was to deter inherently dangerous felonies by holding the felons responsible for the consequences of the felony, whether intended or not. While the range of felonies which may be a predicate for the felony-murder conviction has changed, the function of the doctrine is still to elevate to murder a homicide resulting from a felony by imputing malice.

Criminal statutes are to be "strictly construed against the Commonwealth and in favor of [a] citizen's liberty.” Strict construction, however, does not justify nullification of the evident purpose and meaning of a statute. A penal statute must be construed so as to proscribe only conduct which the legislature clearly intended to be within the statute's ambit.

The second degree felony-murder statute in Virginia contemplates a killing with malice. Indeed, "the commission of any felonious act . . . supplies the malice which raises the incidental homicide to the level of second-degree murder." It does not follow, however, that any death of any person which occurs during the period in which a felony is being committed will subject the felon to criminal liability under the felony-murder rule. To construe our statute to encompass every accidental death occurring during the commission of a felony, regardless of whether it causally relates to or results from the commission of the felony, is to make felons absolutely liable for the accidental death of another even though such death is fortuitous and the product of causes wholly unrelated to the commission of the felony. Recognizing the potentially harsh and far-reaching effects of such a construction of the felony-murder doctrine, the Virginia courts, as well as others, have limited its application. In order for the incidental accidental killing to be murder, the homicide must be criminal in nature and must contain the elements or attributes of criminal homicide cognizable at common law.

One of the most significant factors in defining the scope of the felony-murder doctrine involves the causation required between the felony and the death. Previous decisions of the Virginia Supreme Court have found it unnecessary to decide whether "a mere nexus" between the death and predicate felony is sufficient to satisfy the statute or whether a more direct causal relationship is required. We must address that issue at this time.

In Virginia, it is clear when the homicide is within the res gestae of the initial felony and emanates therefrom, it is committed in the perpetration of that felony. Haskell v. Commonwealth, 243 S.E.2d 477, 482 (1978). The Court explained that "the felony-murder statute applies where the killing is so closely related to the felony in time, place, and causal connection as to make it a part of the same criminal enterprise." Thus, the court in Haskell affirmed first degree murder convictions when the murder of a robbery victim was within five feet of the site of the robbery, within moments of the robbery, and was to facilitate the robbers' escape without being identified. Under these circumstances, the killing was obviously causally related to the robbery and was part of the same enterprise. The Court did not elaborate on the degree of causal connection required under the statute.

In a more recent case, the Virginia Supreme Court affirmed a conviction under the felony-murder rule when a death by cocaine overdose was charged to the person who distributed the cocaine. Heacock, 228 Va. at 401-02, 323 S.E.2d at 92-93. In that circumstance, the court declined to address whether the felony-murder rule required a showing of causal relationship flowing from the felony to the homicide or whether a "mere nexus" would suffice because the death was a direct result of the felony of distribution of cocaine.

In a leading case involving the felony-murder doctrine, which the Virginia Supreme Court has cited with approval, the Pennsylvania Supreme Court addressed the causation problem at length. Rejecting their previous standard of proximate cause, the court stated:

In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing. The mere coincidence of homicide and felony is not enough to satisfy the requirements of the felony-murder doctrine. . . ." Death must be a consequence of the felony . . . and not merely coincidence."

Commonwealth v. Redline, 137A.2d 472, 476 (1958) (citations omitted). The court noted further: "[T]he `causation' requirement for responsibility in a felony-murder is that the homicide stem from the commission of the felony.” The Redline court noted that the malice of the underlying felony attaches to whatever else the criminal may do in connection with the felony. Therefore, "the killing must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking."

The implications of this reasoning are threefold. First, only acts causing death which are committed by those involved in the felony can be the basis for a conviction. Second, the act causing death must result from some effort to further the felony before malice can be imputed to that act. Third, there must be some act attributable to the felons which causes death. It is not sufficient that death be only temporally related to commission of the felony. Death must be directly related in time, place, and causal connection to the commission of the felony; the felony or acts in furtherance thereof must contribute to cause the death to constitute a "killing" within the felony-murder statute.

In the present case, King and Bailey were in the airplane to further the felony of possession of marijuana with the intent to distribute. They were flying over the mountains while committing the felony. The time and the place of the death were closely connected with the felony. However, no causal connection exists between the felony of drug distribution and the killing by a plane crash. Thus, no basis exists to find that the accidental death was part or a result of the criminal enterprise. In the felony-murder cases cited above, death, to be considered an "accidental killing" within the statute, has resulted from a particular act which was an integral part of the felony or an act in direct furtherance of the felony — shooting a gun, striking a match, distributing cocaine. In this case, there is no such act which caused the death. Thus, there has been no homicide, or unlawful killing by another, for which a co-felon can be held accountable. Bailey, who was flying the plane at the time of the crash, was not killed by King or by any act of King which was in furtherance of the felony. We see no "act of killing" which we can attribute to King or to the felony. The felony-murder rule does not exist to enable courts to impute "the act of killing" where an accidental death results from fortuitous circumstances and the only connection with the felony is temporal. The cause of Bailey's death was Bailey's piloting and adverse weather conditions. The accident stemmed not from the possession or distribution of drugs, but from fog, low cloud cover, pilot error, and inexperience. Had Bailey and King been transporting drugs in an automobile when they encountered heavy fog and Bailey, not seeing a curve, had driven off the mountain, the legal consequences would be the same. The commission of the felony merely accounted for their presence at the location of the accident, and nothing directly related to the commission of the felony caused the accident. Thus, flying into the mountain was not a direct consequence of the felony. Had the plane been flying low or recklessly to avoid detection, for example, the crash would be a consequence or action which was directly intended to further the felony and a different result might obtain.

Reversed and dismissed.

The facts of King would be funny were they not so tragic. Bailey, an unlicensed pilot flew into the side of a mountain while smuggling marijuana; his accomplice, King was charged with his death.

The Court rejects imposition of felony murder on these facts: "Death must be a consequence of the felony . . . and not merely coincidence"

But is that all that is wrong with the prosecution here? The person killed was one of the felons. The person doing the killing was the person killed. Was there a homicide here at all?

Recall the facts of People v. Washington, above.

The Court said that felony murder was unavailable because a co-defendant was killed by the shop owner trying to thwart the robbery. Do you remember why that defeated felony murder? Can you imagine a statute that would make clear that it was the legislature's intent to make felony murder available on these facts?

The Washington Court also stated that, notwithstanding the unavailability of felony murder, there were at least two ways that non-killers could be held resonsible for the deaths they did not themselves commit. One was vicariously liability -- accomplice and co-conspirator liability -- a topic to which we will turn shortly.

The other is through the defendant's own conduct. "Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill. Under such circumstances, 'the defendant for a base, anti-social motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death,'  and it is unnecessary to imply malice by invoking the felony-murder doctrine."

What does this mean? What mental state is the Court describing? How would you make the argument that a defendant who did not kill had a culpable mens rea with regard to the death of someone who was killed by someone defending himself against the defendant. 

We will deal with the causation quesitons raised by this theory of criminal accountability in Section 6.1, below.