Professor Diehm
Criminal Law
Spring 2013
HOMICIDE
1. Overview (can charge multiple types)
a. Murder I
i. Felony Murder (life/CP)
1. Malice not required
2. Few jurisdictions say that malice is inherent in felony
ii. Premeditated Murder
b. Murder II – Malice (Life)
i. Malice – recklessness or intent
c. Voluntary Manslaughter (10-15 yrs max)
i. Provocation by heat of passion
ii. Imperfect Self Defense
d. Involuntary Manslaughter
i. Criminal Negligence
ii. Misdemeanor Manslaughter
2. Corpus Delicti (Concrete evidence of a crime)
a. 2 Elements
i. Death
1. Don’t need physical body
2. Circumstantial evidence is sufficient
ii. Criminal agency
1. What caused the death? Knife, gun, fire, etc.
2. NOT accidental death, natural death
b. Independent of confession, state must prove death & criminal agency via prima facie evidence (in order to avoid punishment for false confessions & ‘dead’ person reappears)
c. Don’t need proof beyond a reasonable doubt
3. Death
a. Human Being
i. Fetus is not human being, must at least be in process of being born; take a breath – law changed afterward
ii. Issue of Notice: Guilty person must know that the killing of a fetus is a murder per the statute (see Morales)
iii. Can’t retroactively change law to fit the crime in order to convict. Must be crime at time of action, can’t criminalize after the fact. (Keeler)
b. Pupil dilation, no brain activity
c. When must death occur?
i. At common law: within year and a day
ii. Not followed in all jurisdictions
4. MURDER – unlawful killing of a human being
a. Malice
i. In order for there to be murder, there must be malice
ii. Malice is “ill will, wickedness of disposition, hardness of heart, cruelty, recklessness of consequences or a mind regardless of social duty”
iii. Prove Malice
1. Reckless indifference for human life – Knowing great harm likely to result (King)
a. Firing gun into train
b. Driving speed boat through a crowd of swimmers
c. Firing gun into an occupied room
d. Throwing stones from roof of tall buildings
2. Malice broader than Intent because it can include intent, but doesn’t need intent if there is recklessness.
3. Intent can be found within a malicious act, but intent is not and element for murder
b. FIRST DEGREE
*Can carry death penalty or life imprisonment
i. Premeditated Murder
1. Murder considered before hand
2. Evidence of Premeditation
a. Planning
b. Motive (prosecutor not required to show, but helpful)
i. Get back at some for banging your wife
c. Manner of killing (ex. Poison shows premeditation)
i. Were there threats?
ii. Shot sequence – range, multiple shots
3. How long must forethought exist to be premeditated?
a. True test is not duration of time, but rather the extent of the reflection about action prior to the action
i. Long time usually indicates some level of deliberation/premeditation
ii. “Cold, calculated judgment and decision can be arrived at in a very short time”
ii. Felony Murder
1. No malice required – Society sees these crimes as heinous
2. Unlawful killing of a human being
a. During the commission of a felony
b. During the attempt to commit a felony, or
c. While in flight after the commission of a felony
i. Does not last forever but
ii. Must be one criminal transaction
3. Predicate felony
a. Inherently dangerous to human life
i. Look at the felony in the abstract, not the particular facts of the case
1. Ex—armed robbery is a felony and is inherently dangerous to human life
2. Ex—impersonating a government official is a felony but not inherently dangerous to human life
b. Cannot be predicated on assault
i. Merger doctrine
1. Every murder requires an assault
2. If any assault resulted in death, D could be charged with felony murder every time (which is first degree murder in most jurisdictions)
3. Legislature did not intent to convert every assault resulting in murder into first degree murder (Felony murder)
4. Therefore, assault can never be the predicate felony for purposes of felony murder because it merges with the resulting homicide
c. Look to the Statute
i. Enumerated felony statues: Robbery, kidnapping, rape, burglary
1. If committed murder during one of these felonies à felony murder
ii. No enumeration—“during commission of felony” CHOOSE
1. Inherently dangerous to human life
2. Any felony, or
3. Intent to commit a felony
iii. Mixed—enumerated and “any other felony” CHOOSE
1. Inherently dangerous to human life
2. Any felony, or
3. Intent to commit a felony
c. SECOND DEGREE– unlawful killing with malice
i. Anything not 1st degree
ii. Malice required
iii. Sentencing – Up to discretion of court; life in prison possible
5. MANSLAUGHTER – unlawful killing without malice
a. INVOLUNTARY MANSLAUGHTER
i. Misdemeanor Manslaughter
1. Person commits unlawful act, not felony, that results in death
2. No Malice
3. 2 Jurisdictional views
a. Any misdemeanor suffices
b. Misdemeanor must be inherently dangerous (more common)
i. Reasonably foreseeable risk of appreciable physical injury
ii. Criminal Negligence
1. Reasonable person would foresee that act would cause high degree of risk of death or great harm
2. There must be a death for there to be criminal negligence
b. VOLUNTARY MANSLAUGHTER
i. Intentional killing in the heat of pas
1. Alibi Defense – defendant can show that victim had sexual conduct at or near time of alleged rape (i.e. Rape kit has 2 DNA)
2. Consensual Defense – defendant can allege prior sexual conduct between himself and victim
3. Constitutional Defense – Due process requires prosecutor turn over favorable evidence to defendant to defense. (ex. 3rd party fingerprints, victim’s prior false rape reports)
2. Kidnapping
a. Unlawful Taking/Asportation against her will
b. Vicinity – how far away was person taken?
3. Mayhem
a. Common law
i. All king’s men were subject to conscription in army and any disfigurement of man harmed the king
b. Willful intent to injure, disfigure, or disable another person
c. Not common, occasionally used in cases where person hits another with acid
d. Not in every jurisdiction
4. Dueling – Not common
OFFENSES AGAINST HABITATION
1. Common Law Burglary
a. Breaking and entry of a dwelling of another in the night time with the intent to commit a felony or larceny therein
b. Elements
i. Breaking;
1. Actual or constructive required
a. Actual – slightest application of force
b. Constructive – entry with threats, fraud, conspiracy (people working with inside man to enter building)
ii. Entering;
1. Physical, bodily entry not needed
2. Any tool used by individual as agency to consummate offense is sufficient
iii. Of the Dwelling of Another;
1. Dwelling must be occupied – doesn’t not have to be occupied at time of burglary
2. Dwelling = human must be able to enter, turn around
3. Building must be within the curtilage (living area) of the dwelling
4. Can’t burglarize own home b/c have possessory right
iv. Occurs at Nighttime (for our purposes);
1. Time when can’t recognize visage of human face (dusk to dawn)
v. With the Intent to commit felony or larceny therein
1. Proven by circumstantial evidence
2. Must have intent at time of entry
2. Common Law Arson
a. Willful and malicious burning of a dwelling of another
b. Common Law Elements
i. Malicious
ii. Burning
iii. Dwelling
1. Dwelling house or building within curtilage
iv. Of Another
1. Statute has changed, can now be own building
