Select Page

Criminal Law
Villanova University School of Law
Pether, Penelope J.

Villanova University School of Law

Professor Pether

Criminal Law

Fall 2010

Intentional Homicides

Murder: Unlawful killing of another human being.

Is it a premeditated Killing?

Common Law “The Pennsylvania Pattern”:

· 1st Degree Murder: Malice aforethought and deliberate, premeditated killing.

o Carroll- No time is too short to premeditate

§ [Def. had argument with wife who continually gave him a hard time, 5 mins after wife went to be def. grabbed gun and shot her convicted of Murder 1]

o Anderson- 3 elements of premeditation

§ 1) Planning

§ 2) Motive

§ 3) Manner of Killing: Wounds must show preconceived designs.

§ [ Man killed little girl in her home with evidence of killing throughout the house, door locked and stabbed girl 60 times, def. not guilty of Murder 1 since none of the elements were present]

o Perez- 3 elements of Anderson are not essential or exclusive to premeditation. Relies heavily on manner of killing.

§ [Pregnant woman killed by acquaintance inside her home by multiple stab wounds and went back to the drawer for another knife when the steak knife broke def. guilty of Murder 1]

o Mitigating Factor: Intentional killing can be brought down to MS if it is ruled to be a passion killing.

§ In most cases the prosecutor must not only prove the killing beyond a reasonable doubt but also negate VM beyond a reasonable doubt.

Is it a provoked Killing?

Penn Pattern:

2nd Degree Murder: Only Malice Aforethought

· Malice Aforethought: Doesn’t necessarily require malice or aforethought. 4 different mens reas that constitute malice. All exhibit actor’s extreme indifference to the value of human life.

o Express Malice: Intentional Killing

o Implied Malice:

§ Provoked Killing: Intent to cause gross bodily harm.

ú An intentional killing could become reduced to MS if provocation engendered heat of passion.

§ Depraved Heart (Discussed under unintended homicide)

§ Felony Murder (Intent is implied through other felony discussed later).

Manslaughter: The unlawful killing of a human being without malice aforethought.

· Voluntary Manslaughter: Passion Killing, An intentional killing committed in the “sudden heat of passion” as the result of “adequate provocation”. Provocation mitigates murder to MS.

o 1) Killing must be intentional (usually)

§ 2 alt. theories about passion and malice justifying lesser punishment.

ú 1) Passion negates malice

ú 2) Or it lessens the malice

§ Paradox: VM is an offense, but the provocation that establishes VM is a partial defense. 2 theories.

ú 1) The provoker is partially responsible for their own death b/c they roused the violent impulse in the killer.

ú 2) The provoker has done the killer such injury that the killer is entitled to retaliate.

o 2)Passion must be provoked by an adequate or reasonable cause. (Causal connection between provocation and passion, and killing)

§ Adequacy: Obj. reasonableness standard that may include subj. elements (i.e. the reasonable adolescent).

ú Page: “Homosexual Advance” is not a reasonable cause for provocation. (Words alone are not enough)

· [Def. attempted to use other cases that showed homosexual advance was enough for provocation, but Court distinguished those cases b/c those cases were based on the unreasonable belief of the need for self-defense or a physical confrontation]

§ In most cases physical contact or the apparent threat of physical contact is required for VM.

§ All kinds of extreme emotion count, not just anger.

§ Are we in a last straw jurisdiction(most jurisdictions aren’t last straw)?

ú If Yes, then an action can be used as the “last straw” in provoking the killer, even if that action by itself is insufficient to provoke the passion needed to kill.

o 3) Person must be provoked so severely that they lose control.

§ Subj standard- did the def. in fact lose self-control.

§ Obj standard- would the reasonable person, or reasonable person with def. characteristics have lost control.

o 4) Before a reasonable opportunity for passion to cool.

§ Obj standard- Would the reasonable person’s ability to reflect “coolly” or exercise self control be sufficiently reduced that he wouldn’t have lost control.

§ No fixed period of time, but the passage of time works against the def.

§ Avery: Elements 2-4 apply objective standard of reasonableness. Court subjectivized this standard by taking other factors into consideration.

ú [Def. admitted to shooting ex-lover but argued that shooting arose from sudden passion (fear) from harassing phone calls, harassment and refusal to leave earlier in the night, threatened to beat her, pulled her hair, she called b/f hysterical aft

substantial, but not extreme enough to merit the treatment as murder.

· Mitigating Factor: Extreme Mental or Emotional Disturbance (EMED): Lowers what would have been Murder to Manslaughter.

o 1) Murder under extreme mental or emotional disturbance

§ Subjective test based on the actual defendant.

§ The Court objectivizes this test by requiring expert testimony and/or the person being extremely and obviously sick.

o 2) for which there is reasonable explanation or excuse

§ Objective test, explanation/excuse for the EMED not for the actual homicide.

o 3) which is determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.

§ Objective test, but it is subjectivized by the Court putting the reasonable juror in the shoes of the def.

§ How many and which factors the court will consider determines how far this test is subjectivized to that specific def.

§ Casassa: Legislature intended finder of fact to exercise discretionary power to mitigate the penalty, when presented with a situation, which shows an understandable weakness in one of their fellow people.

ú [Def. argued that girlfriend dumping him “devastated him.” Eavesdropped on her apt. several times and broke in with a knife. Went to her apt. to offer wine and liquor, once rejected he stabbed her with a steak knife he had brought with him and put her in bathtub to make sure she was dead, guilty of 2nd degree Murder]

ú Note: Controversial b/c factfinder(jury) can be arbitrary in determining who is “deserving of mercy” disfavors a def. whose lifestyle, beliefs, politics, religion that the jury does not “understand”,

· states have added instructions that jury view circumstances as the def. reasonably believed them to exist.

o This includes reckless killings that are less culpable than reckless murder.

o Burden of Proof is placed on the def.