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Criminal Law
Southern Illinois University School of Law
Dervan, Lucian E.

Lucius Dervan
Criminal Law
Fall 2010
·         A. Different grades of homicide: Any unlawful taking of the life of another falls within the generic class “homicide.” The two principal kinds of homicide are murder and manslaughter. [230] o   1. Degrees of murder: In many jurisdictions, murder is divided into first-degree and second-degree murder. Generally, first-degree murder consists of murders committed “with premeditation and deliberation,” and killings committed during the course of certain felonies. [230] o   2. Two kinds of manslaughter: Similarly, manslaughter is usually divided into: (1) voluntary manslaughter (in most cases, a killing occurring the “heat of passion”); and (2) involuntary manslaughter (an unintentional killing committed recklessly, grossly negligently, or during commission of an unlawful act.) [230] o   3. Other statutory forms of homicide: Additional forms of homicide exist by statute in some states. Many states have created the crime of vehicular homicide (an unintentional death caused by the driver of a motor vehicle). Similarly, some states, and the MPC, have created the crime of “negligent homicide.” [230] II. MURDER – GENERALLY
·         A. Definition of “murder”: There is no simple definition of “murder” that is sufficient to distinguish killings that are murder from killings that are not. At the most general level, murder is defined as the unlawful killing of another person with malice aforethought. [230] o   1. Four types: In most states, there are four types of murder, distinguished principally by the defendant’s mental state:
§  [1] intent-to-kill murder;
§  [2] intent-to-commit-grievous-bodily-injury murder;
§  [3] “depraved heart” (a/k/a “reckless indifference to the value of human life”) murder; and
§  [4] felony-murder, i.e., a killing occurring during the course of a dangerous felony.
§  Each of these types is discussed in detail below.
·         B. Taking of life: Murder exists only where a life has been taken. Therefore, be ready to spot situations where there is no murder because either: (1) the victim had not yet been born alive when D acted, and was never born alive; or (2) the victim’s life had ended before D’s act. [230 – 232] o   1. Fetus: A fetus is not a human being for homicide purposes, in most states. Thus if D commits an act which kills the fetus, this does not fall within the general murder statute in most states. [231 – 231] §  Example: D shoots X, a pregnant woman. The bullet goes into X’s uterus and instantly kills V, a fetus which has not yet started the birth process. In most states, D has not committed garden-variety murder of V, though he may have committed the separate statutory crime of feticide, defined in many states.
§  a. Fetus born alive: But if the infant is born alive and then dies, D is guilty of murdering it even though his acts took place before the birth. (Example: Same facts as in the above example. Now, however, assume that the shooting causes X to go into premature labor, V is born alive, and immediately thereafter V dies of the bullet wound. D has murdered V.) [231] o   2. End of life: Traditionally, death has been deemed to occur only when the victim’s heart has stopped beating. The modern tendency, however, is to recognize “brain death” as also being a type of death. [232] §  Example: D, a physician, concludes that V is “brain dead,” and thus removes V’s heart to use it in an organ transplant. Most courts today would probably hold that D has not murdered V, because V was already dead even though her heart was still beating.
·         C. Elements of murder: Here are the elements which the prosecution must prove to obtain a murder conviction: [232 – 233] o   1. Actus reus: There must be conduct by the defendant (an “actus reus”) either an affirmative act by D an omission by D where he had a duty to act. [232] o   2. Corpus delecti: There must be shown to have been a death of the victim. Death is the “corpus delecti” (“body of the crime”) of murder. But the prosecution does not have to produce a corpse. Like any element of any crime, existence of death may be proved by circumstantial evidence. [232] §  Example: D and V are known to be getting along badly, and D has a motive – financial gain – for wanting V dead. V is last seen alive while about to visit D’s remote mountain cabin. V is never seen again, and no body is ever found. V’s wallet is found in the cabin. Seven years have gone by without a trace of V. A jury could probably reasonably conclude that V is now dead, and that D caused the death by methods unknown.
o   3. Mens rea: D must be shown to have had an appropriate mental state for murder. The required mental state is sometimes called “malice aforethought,” but this is merely a term of art, which can be satisfied by any of several mental states. In most jurisdictions, any of the four following intents will suffice: [233] §  a. An intent to kill; [233 – 234] §  b. An intent to commit grievous bodily injury; [234 – 235] §  c. Reckless indifference to the value of human life (or a “depraved heart,” as the concept is sometimes put); [235 – 236] and
§  d. An intent to commit any of certain non-homicide dangerous felonies. [237 – 246] o   4. Proximate cause: There must be a causal relationship between D’s act and V’s death. D’s conduct must be both the “cause in fact” of the death and also its “proximate cause.” [233] §  a. Year-and-a-day rule: Most states continue a common-law proximate cause rule that applies only in murder cases: V must die within a year and a day of D’s conduct. [233] §  Note on four types of murder: Anytime D can be said to have killed V, you should go through all four types of murder before

bodily harm. However, all courts recognizing this form of murder hold that a mere intent to commit some sort of bodily injury does not suffice. [235] §  Example: D punches V in the face, intending merely to knock V down. V strikes his head while falling, and dies. Probably no court would hold that D is liable for “intent to do serious bodily harm” murder on these facts, though he would be liable for manslaughter under the misdemeanor-manslaughter rule.
o   3. Model Penal Code rejects: The Model Penal Code does not recognize “intent to do serious bodily harm” murder. The MPC regards the “reckless indifference to value of human life” or “depraved heart” standard, discussed below, as being enough to take care of cases where D willfully endangers the life or safety of others and death results. [235] ·         F. “Reckless indifference to value of human life” or “depraved heart” murder: Nearly all states hold D liable if he causes a death, while acting with such great recklessness that he can be said to have a “depraved heart” or an “extreme indifference to the value of human life.” [235 – 236] o   1. Illustrations: Here are some illustrations of “depraved heart” or “extreme indifference” murder: [236] §  Example 1: D sets fire to a building where he knows people are sleeping; he does not desire their death, but knows that there is a high risk of death. One inhabitant dies in the fire.
§  Example 2: D fires a bullet into a passing passenger train, without any intent to kill any particular person. The bullet happens to strike and kill V, a passenger.
§  Example 3: D, trying to escape from pursuing police, drives his car at 75 mph the wrong way down a one-way residential street that has a 30 mph speed limit. D hits V, a pedestrian.
o   2. Awareness of risk: Courts are split as to whether D shows the requisite “depravity” where he is not aware of the risk involved in his conduct. [236] §  a. MPC view: The Model Penal Code follows the “subjective” approach to this problem: D shows the required extreme recklessness only if he “consciously disregards a substantial and unjustifiable risk.” [236] §  b. Intoxication: If D fails to appreciate the risk of his conduct because he is intoxicated, even courts (and the MPC) that would ordinarily follow a “subjective” standard allow a conviction. [236]