Create an account
What is required to prove common law Homicide
1) Causing the death
2) Of a living human being
3) Where death occurs within a year and a day (CA is 3 years).
Common law murder was divided into:
-- Voluntary Manslaughter
-- Involuntary Manslaughter
NOTE: in most states there is no SOL to homicide
What is Murder at Common Law?
It is an unlawful killing with malice aforethought. Malice can be shown by four ways at common law:
1. Intent to kill
2. Intent to inflict great bodily harm (or serious bodily injury)
3. Act of a depraved heart - reckless indifference to a known high risk of death
4. Felony murder rule
Under what circumstances is Homicide Justifiable (3)
1) Where the killing was necessary;
2) The killer is without fault
3) The killing occurs in the performance of a legal duty; OR
The exercise of a legal right.
Modern classifications of Murder: 1st Degree
Intent to kill + premeditation, deliberation. Poison, torture, ambush, bomb, lying in wait or enumerated felony murders
Example of 1st degree Murder
2) D shoots gun at a target in a vacant lot knowing that houses are in range. D misses target and kills person in the house.
The requirements for first degree murder is malice, which means a Mens Rea of "intent to kill", either from D's words, use of a deadly weapon in a deadly manner, or "reckless indifference to a known high risk of death." Also required is Actus Rea - an act of D.
Here the D will be found to have malice required for 1st degree murder. The act of shooting a gun knowing that houses are in range is an act of reckless indifference to a known hight risk of death. Thus D will have the sufficient Mens Rea.
1) Murder in the 2nd Degree
Specific intent to kill or general intent to do an act almost certain to produce death or intent to produce serious bodily harm. Depraved heart murders or wanton or reckless murders.
Definition Depraved Heart murder, which is Murder in the 2nd degree.
Depraved heart murder requires the D "engage in extremely negligent conduct that a reasonable person would realize creates a very high degree to risk to human life, which results in death.
Example of Depraved Heart Murder
Commonwealth v. Malone: a game of Russian roulette evinced malice and recklessness towards a very serious risk, thus fulfilling the mens rea required for depraved heart murder despite the fact that the killing of the specific victim was unintentional
2) Felony Murder
Applies when the death of a victim is proximately caused by the acts committed by a felon
1) during the attempt or perpetration
2) of a statutorily enumerated felony or an inherently dangerous felony.
Although they differ from state to state, common law "inherently dangerous felonies" usually include BARRK (Burglary, arson, rape, robbery, kidnapping and mayhem.)
What does "during the attempt or perpetration" mean?
Perpetration commences with attempt and ends with escape - a place of temporary safety.
Mens rea for Felony Murder
If the mens rea for the underlying felony is shown, a "malicious" state of mind is imputed to the person in the process of committing the felony, resulting in a murder charge.
What happens if the murder is committed during the felony but is not in connection with a statutorily enumerated felony or one that is inherently dangerous?
A murder committed during the commission of any other "non-dangerous" felony would be second degree murder.
FM - Agency or proximate cause jurisdiction?
In an agency jurisdiction, death must be caused by the felon or his agent.
In a proximate cause jurisdiction, death caused by police, others, FM rule applies.
NOTE: Death of a co-felon always counts.
no malice is present for either voluntary or involuntary manslaughter.
"Manslaughter is "the unlawful killing of a human being without malice." (§ 192.) A defendant lacks malice and is guilty of voluntary manslaughter in "limited, explicitly defined circumstances: either when the *88 defendant acts in a 'sudden quarrel or heat of passion' (§ 192, subd. (a)), or when the defendant kills in 'unreasonable self-defense' - the unreasonable but good faith belief in having to act in self-defense"
Voluntary Manslaughter Elements:
AR is homicide and MR is specific intent to kill, seriously injury or create a very high risk of either.
VM is an intentional criminal homicied committed without malice because it is done in the heat of passion without time to cool off
Is an unintentional homicide without malice. No intent to kill.
MR - gross criminal negligence, including intent to inflict non-serious bodily harm. (e.g., I push V during a fight into a swimming pool where she inhales too much water and goes into a coma and dies.)
Voluntary Manslaughter - Provocation
While it is true that D has the intent to kill, if he can prove that he was provoked and had no time to cool off, he may be charged with Voluntary manslaughter rather than Murder.
The provocation must be in ways that are legal and adequate -- sufficient to provoke a reasonably prudent person in the situation - with a lack of time to cool off.
Provocation for Manslaughter
"a strong passion aroused by a 'provocation' sufficient to cause an ' "ordinary [person] of average disposition ... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."
Moreover, the passion aroused need not be anger or rage, but can be any " ' "[v]iolent, intense, high-wrought or enthusiastic emotion" ' "
Cal Ct of appeals on difference between Voluntary Manslaughter and Involuntary Manslaughter
The Court of Appeal explained: "The basic distinction in California law between voluntary and involuntary manslaughter is that voluntary manslaughter requires an intent to kill whereas involuntary manslaughter does not.
Is an imperfect self defense (bigger man attacked with non-deadly force by smaller man. Bigger man pulls knife and smaller man impales himself) Involuntary Manslaugher because no intent to kill? NO.
"We conclude that when a defendant, acting with a conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary rather than involuntary manslaughter."
Please allow access to your computer’s microphone to use Voice Recording.
Having trouble? Click here for help.
We can’t access your microphone!
Click the icon above to update your browser permissions and try again
Reload the page to try again!Reload
Press Cmd-0 to reset your zoom
Press Ctrl-0 to reset your zoom
It looks like your browser might be zoomed in or out. Your browser needs to be zoomed to a normal size to record audio.
Please upgrade Flash or install Chrome
to use Voice Recording.
For more help, see our troubleshooting page.
Your microphone is muted
For help fixing this issue, see this FAQ.
Star this term
You can study starred terms together