homicide - definition
- homicide is the killing of one human being by another human being.
- COMMON LAW: justifyable, excusable, criminal
- MODERN LAW: excusable is justifyable, negligent, capital murder and murder one and two.
unlawful killing of another human being with makice aforethought
- intention to kill, actual or implied.
- actual is manifested intent
- implied is desire to create grevious bodily harm., or where the natural tendency of behavior was to create death or great bodily harm ( child punishment? drowning)
- ONE OF THE FOLLOWING:
- intent to kill ( use of a gun and death occurs will be deadly wepon and thus murder)
- intent to create great bodily harm ( beating someone up who dies)
- intent to commit a felony ( must be in the process of the felony at the time)
- resist of lawful arrest: old view,caused killing-guilty regardless, but better view: malice aforethought.
- awareness of high risk of death ( depraved ming, malignant heart) traditional view- ignoring circumstances shows deprevitymust be aware of this risk.better view: recklessness and unknowingly creating the risk is "too far removed from intentional killing to be considered the same
creation of risk too many: jepordizing many persons, not specifically to the V
awareness to obligation to obey laws in addition to malice aforethought ( california supreme court)
1981 CAL PENAL CODE abolished this requirement.
proof of malice aforethought
may be proven with circumstantial evidence. however, there is a constitutional requirement of innocent untill proven guilty.
first degree murder
- NOT COMMON LAW: common law has no degrees of murder ( before mentioned)
- STATUTES: divide into first and second degree murder.
- premeditated murders : intent to kill with some reflection, deliberation, reasoning or weighing.
- proof of opportunity to premeditate as well as jury decided in fact was premeditate. HOWEVER, some courts say this can be instentaneous.
- proof of actual due consideration; some courts need direct proof of consideration( calm thought) evidence can be planning, preexisting motice, even measuring a lethal dose. EXAMPLE( in a pasture a woman is raped and killed by strangulation. there is no evidence here of premeditation.)
- premeditation ( opportunity, consideration)
- killing during certain felonies
- bombs, poision, lying in wait
- killing by torture
- capital murder ( sentenced to death if there are specific cspecial circumstances, several enumerated aggrivated factors)
california requirements for premeditation
- before 1981, maturely and meaningfully consider, thus diminished capacities and retardation might not show premeditation.
- 1981 was ammended to provide that there is no need to prove D maturely and meaningfully reflected on the gravity of the killing.
- some felonies will make a first degree charge, even accidental death. ( also co-felons are guilty, even if victim is one of them)
- some are second degree murder ( check statute)
- applies to perpetration and attempted perpetration of these murders.
- might likely include:
- burglary ( breaking an entering)
- sexual molestation of a child
even where there is conrtibutory negligence this functions like a strict liablitiy
CA PEN CODE: killings comitted during other felonies other then listed are second degree.
LIMITATIONS: some courts ( forseeable death) in case of firefighter, should have known firefighters would come to aid, and thus ff death was a forseeable, also some negligence would also be forseeable.
- must be a dangerous felony, gun cleaning by felon does not apply
- and must be dangerous in manner of death ( gun discharge while cleaning it by a felon)
- felony must be independent ( and accidental? ) otherwise killing merges with the killing and crime eg. rape resulting in death becomes murder one.
- must actually cause death, police and victims do not count
- COMPARE: a resisting victim in a robbery kills another felon, then felons are not liable.
- in the perpertration of the felony.
MPC: not a separeate catagory of murder.but might still be guilty if commiting a dangerous crime by showing reckless indifference to human life.
Killing a person by poisin, bomb, lying in wait.
sometimes specifically made first degree murder, but not neccessairly.
killing by torture
need proof of intent to pain and suffering for the purpose of revenge, humiliation etc. and is not necessairly first degree murder. and there has to be a causal relationship between the torture and the death of V.
SECOND DEGREE MURDER
- all murders which are not made to be first degree murder.
- has to specifically be on the first degree murder list.
- proof of one of several enumirated aggrivations, special circumstances,
- defendant has to be convicted of capital murder itself to be sentenced to death.
- a killing ( otherwise murder) which is in response to provocation, because of no malice aforethought.
- a matter of law for the judge. should be reduced if reasonable believed about provocation. and if provoked, but misses and kills other then ok to be reduced. if intends to kill nonprevoking person then no reduction. sometimes a close relative can be provoked and allowable for reduction. person must actually be prevoked ( subjective). sometimes culminative events allowable.MPC: influence of extreem mental or emotional disturbance which has a reasonable explanation or excuse.
anger or embarassment not enough.
imperfect defense case. whereD believes reasonable force used in( self defense) however evidence shows unreasonable force used. then creates a vouluntry manslaughter because of imperfect defense.
- provocation causing reasonable person to lose controll ( objective-outside, no special circumstances considered) MPC: under the circumstances as the D believed them to be.
- in fact provoked
- immediate ( no cool off)
- not cooled off as a fact
- as a matter of law:
- words alone insufficient, ( minority, if convey some informaiton, ex. confession of rape)
- battery, unless severe.
- assault( remember this is attempt battery... fired a gun at and missed) courts are split
- illegal arrest: in best view, perhaps it can
- adultry most if in act, some even if hears about it later, or sees person suspected of such.
- mutual quarrel( unless at the beginning of the fight D took an unfair advantage)
- unintentional killing if:
- criminal megligence( unintentional killing by the comission of an act, even lawful.more then civil negligence.wnaton or reckless need to go beyond even gross negligence ( blind hunter) awareness of risk might be needed.
- during unlawful act, not a felony nature of unlawful act, suicide is not illegal, but is unlawful, therefore killing someone accidentally who rescues you is involuntary manslaughter. so is drinking and driving?
- LIMITATIONS: ( some courts)
- melum in se ( wrongful in itself) not just malum prohibitum ( prohibited for convenience, like traffic)
- negligence in addition to unlawful act ,,, act with criminal negligence not just misdemenor. maybe has to be cause of death.
MPC homicide crimes
- murder: killing comitted
- recklessly under circumstances manifesting extreme indifference
- killing commited recklessly
- emotional disturbance or mental one.. otherwise is murder, but has a reasonable explanation or excuse.
- NEGLIGENT HOMICIDE:
- killings commited negligently
problems relating to homicide liability
- fetus killing not murder
- CA PENAL CODE: unlawful killing of another human being, or fetus,.... with malice aforethought
- constitutional right to privacy.
- definition of death: cessation of heartbeat and respiration
- ( possible brain death)
- must be a year and a day from "fatal blow" to count as cause.... CALIFORNIA PENAL CODE: extended to 3 years and a day
- Aiding suicide
- COMMON LAW: suicide is murder
- CA PENAL CODE: assisting suicide is separate death.