Chapter Nine
Crimes Against Persons:
Chapter Nine: Learning Objectives
• Understand that criminal homicide is different
from all other crimes because of the finality of
its result: the death of the victim.
• Appreciate that most of the law of criminal
homicide is about grading the seriousness of
the offense. Grading murder into first and
second degree is important because only
first-degree murder qualifies for the death
Learning Objectives (continued)
• Appreciate that the meaning of person is integral
to homicide law and understand how that
presents problems at both ends of the life cycle.
• Understand how degrees of murder developed
through history and their relation to capital
• Understand how most criminal homicide statutes
apply to corporations, but prosecutions are rare.
Learning Objectives (continued)
• Understand that the heart of voluntary
manslaughter is an intentional, sudden killing
triggered by an adequate provocation.
• Know that provocation is not an excuse for
criminal homicide; it only reduces the
seriousness of the crime and the punishment to
allow for human frailty.
• Know that the central elements in involuntary
manslaughter are its actus reus, mens rea;
causing the criminal harm of death.
Learning Objectives (continued)
• Understand that criminal negligence homicide
statutes cover a wide field, including the
most common, unintentional deaths caused
by operating vehicles and firearms, but also
medicine, handling explosives, delivering
dangerous drugs, allowing vicious animals to
run free, failing to care for a sick child, and not
providing fire exits in businesses.
Homicide in Context
• Criminal Homicide is rare
• Much of the law discussed earlier grew out of
criminal homicide cases
– mens rea issues
– Self defense issues
• Three step analysis of criminal liability grew
out of the work on criminal homicide:
– criminal conduct?
– Without justification?
– Without excuse?
• Most of homicide discussions deal with issues of
grading the crime because the punishment for
criminal homicide depends on the degree of
murder or the type of manslaughter committed
– Issue of how much punishment should we inflict upon
people who kill other people?
• Capital punishment?
• Lifetime incarceration?
• Fines?
– Tremendous variances among states and federal
governments concerning classifying and punishing
different types of criminal homicide
Defining Human Being
• Criminal homicide involves killing a person
• Requires a definition of person
– When does life begin?
– When does life end?
When does life begin?
• Common law followed the born alive rule
– To be a person (and thus to be capable of being a
homicide victim) the baby had to be born alive
– Exception: People v. Chavez (1947):
• Holding: viable child in the process of being born was a
human being within the meaning of the homicide statute
regardless of whether the process was complete
– Keeler v. Superior Court (1970):
• California court refused to extend the definition of person to
include fetuses born before the birth process. Overturned
conviction of Keeler who had caused death of wife’s unborn
fetus by kicking her.
State v. Cotton (2000)
Summary of case holding
• Because baby was born alive, it didn’t matter
that defendant had caused the injury leading
to her death while she was still in utero.
When does life begin?
• Some states have revised existing homicide
statutes to include persons and fetuses as
potential homicide victims
• Some states have created the crime of
feticide, directed at the killing of fetuses
– Viability?
– Quickening?
– At conception?
When Does Life End?
• Historically death occurred when the heart
and breathing stopped
• Modern medicine makes this determination
more complicated—organ transplants,
artificial life support
• Accelerating a persons death is criminal
– Example: State v. Fiero (1979)…a doctor removing
an organ too soon
When does life end?
• Brain death
– Complicates the criminal homicide determination
– Uniform Brain Death Act
• Individual who has suffered irreversible cessation of all
brain functions, including those of the brain stem, is
• Coma
– Troubling cases
Doctor Assisted Suicide
• Euthanasia = helping others die
• Historically assisting another to commit
suicide was criminal homicide (and still is in
most jurisdictions)
• Passive euthanasia = failing to take
extraordinary measures to keep someone
• Active euthanasia = deliberate acts to cause
Doctor Assisted Suicide
• Voluntary euthanasia = dying person makes
rational request
• Involuntary euthanasia = no request by dying
person, but decision by family/court for
– Good reasons = beneficent
– Bad intentions = malevolent
Doctor-Assisted Suicide
• Arguments Against:
– Intrinsically immoral
– Slippery Slope
• Mistakes, malevolent purposes, potential for wrong
diagnosis, threat of non-mercy killings are too great to
justify an exception.
– Societal interests at stake
Doctor-Assisted Suicide
• Arguments in Favor
– Not an argument FOR euthanasia, its an argument
against pain
– Compassion
– Constitutional Right
• Presumption of bodily integrity
• liberty interest guaranteed in 5th and 14th Amendments
include the right to die
Constitutional Right to Doctor-Assisted
• Washington v. Glucksberg (1997)
– U.S. Supreme Court upheld Washington’s
legislative ban on doctor assisted suicide
• Gonzalez v. Oregon (2005)
– U.S. Supreme Court upheld Oregon’s Death with
Dignity Act
• Washington Initiative (2008) voters enacted a
death with dignity act modeled on Oregon’s
Doctor Assisted Suicide and Criminal Law
• Assisted suicide is difficult to distinguish from
first degree murder
• But, rationales for condemning murder are
not presented in doctor assisted suicide
– Doesn’t violate a person’s interest in continuing to
– Isn’t necessarily a destructive force in society
• Opposing viewpoints are irreconcilable
Public Opinion
• Public opinion about doctor-assisted suicide is
– 2007 Gallup Poll:
• 56% favor
• 38% oppose
• Homicide divided into
– criminal homicide and
– noncriminal homicide:
• Justifiable homicide
• Excusable homicide
• Common Law divided criminal homicide into
– Murder
• Killing a person with malice aforethought
– Manslaughter
• Killing a person without malice aforethought
Common Law Murder
Blackstone 1769
“When a person
Of sound memory and discretion
Unlawfully killeth
Any reasonable creature in being
Under the king’s peace
With malice aforethought, either express or implied”
(Sir Edward Coke)
– Note: At common law, the death had to occur within a year
and a day of the offender’ acts
Malice Aforethought
• Malice = specific intent, killing on purpose
with ill will, hate or spite
• Aforethought = acts planned in advance
– Express malice aforethought (early common law)
– Implied malice aforethought (as law developed)
Intentional killings that weren’t premeditated
Unintended killings that occurred during a felony
Extreme reckless killings (depraved heart murder)
Intent to create serious bodily injury murder
Elements of Murder
A Result Crime
• Actus reus – the act of killing
• Mens rea – killing with purpose, knowledge
or extreme recklessness
• Causation-the act caused the death
• Death
• Attendant circumstances
Kinds and Degrees of Murder
• Not formally divided under degree in English
common law—all were felonies
– Benefit of clergy—developed to mitigate the
harshness of the punishment (Most crimes were
capital felonies, and criminals were hanged)
– Dividing murders into degrees continuation of
idea that not all felons, not even all murderers
should be executed
• U.S. colonies/states, degrees of murder were
created by legislatures
Degrees of Murder
• Most states divide homicide into two degrees,
some divide it into three
• Model Penal Code doesn’t use degrees, but
divides murders according to mental attitudes
(Purpose, Knowing, and extreme recklessness)
First Degree Murder
• Premeditated, deliberate, intent to kill murder
• Felony murder
• Only crime for which death penalty can be
imposed (capital cases)
• Death penalty issues complicate murder law
– Supreme Court decisions have resulted in following
Mandatory death sentences are banned
Unguided discretionary death penalty decisions are banned
Mitigating factors are required
Additional aggravating factors are allowed
First Degree Murder, death penalty
• Model Penal Code recommendations re: death
– Bifurcation of the guilt determination phase and
the sentencing phase
– Criteria for decision is limited and announced
before the decision to sentence the defendant to
• Aggravating factors (see listing in text p-290)
• Mitigating factors (see listing in text p-290)
• Aggravating and Mitigating factors must be considered
before making decision
First Degree Murder
• Mens Rea
– Willful, deliberate, and premeditated murder (The
“grand criterion of murder”
– Something more than the intent to kill
– Often disagreement what deliberate and
premeditated mean
– Willful = intent to kill
– Premeditated = sufficient time to enable the mind
to frame the design to kill
– Deliberate = fully conscious of purpose and design
First Degree Murder
• Case examples with definitions of willful,
premeditated and deliberate:
– Commonwealth v. Drum (1868)
– People v. Anderson (1968)
• Specific intent plus real premeditation-deliberation
– Macias v. State (1929)
• Willful, premeditated, deliberate = specific intent to
Byford v. State (2000)
Summary of case holding
• Court found sufficient evidence to establish deliberation
and premeditation on defendant’s part.
• Distinguishes between premeditation and deliberation
– Willful = intent to kill
– Deliberation = process of determining upon a course of action to
kill as a result of thought, including weighing the reasons for and
against the actions
– Premeditation = design, determination to kill, distinctly formed
in the mind by the time of the killing
• Court found torture (aggravating circumstance) requires
that murder intended to inflict pain beyond the killing
itself….and that jury could find facts to support that
State v. Snowden (1957)
Summary of case holding
• Court determined that the time needed to
remove the knife from his pocket, open it and
cut the victim’s throat was sufficient time to
show premeditation and deliberation. Thus,
the court sustained the defendant’s murder
Actus Reus of First Degree Murder
• Voluntary act of killing
• many forms of killing
• Many statutes require “heinous atrocious or
cruel” acts to accomplish the actus reus of
first degree murder
– Example: State v. Duest
State v. Duest (1985)
Summary of case holding
• Facts of case were sufficient to find that
defendant engaged in atrocious heinous and
cruel murder
– Multiple stab wounds
– Statements that he intended to roll gay guys
– Stole victim’s jewelry
Second Degree Murder
• Second Degree murder statutes include
– implied malice crimes created by common
law judges (and retained by state statute)
– felony murders
– intent to inflict serious bodily injury murders
– depraved heart murders
• Unintentional but extremely reckless murders differ
from reckless mansalughter
– Killing very very, very, very recklessly
• Some state statutes make second degree
murder the “catch all” category
People v. Thomas
Summary of case holding
• Malice or intent to kill may be inferred from
the acts of the defendant.
• The intent to kill may be implied where the
actor actually intends to inflict great bodily
harm or the natural tendency of his behavior
is to cause death or great bodily harm.
Felony Murder
• Unintentional deaths that occur during the
commission of some felonies
• States vary as to what felonies are included—
some list the felonies
– See Maryland’s Felony Murder Statute
• Variation regarding whether co-defendant’s
death can be basis for felony murder
– Third party exception; resisting victim exception People v Hudson (2006)
Felony Murder
• Some states say that felony murder applies to
“inherently dangerous felonies.”
– Approach 1- Determine whether felony is
inherently dangerous by looking at the crime in
the abstract
– Approach 2-determine whether the felony is
inherently dangerous by looking at the facts
presented in the case. (case by case approach)
Felony Murder Mens rea
• Felony murder does not require the intent to
either kill or inflict serious bodily injury
• In that respect they are sometimes considered
“strict liability” crimes….
• Remember that the actor must have the
requisite mens rea to commit the underlying
People v. Hudson (2006)
Summary of case holding
• Court examined whether the defendant was guilty of
proximate cause theory of felony murder, and spent a
great deal of time discussing the causation element.
• The court stated, “It is immaterial whether the
killing…Is intentional or accidental or committed by a
confederate without the connivance of the defendant
or even by a third person trying to prevent the
commission of the felony. . . “ (as long as he is
proximate cause).
• Jury was correctly instructed as to proximate cause.
People v. Phillips (1966)
Summary of case holding
• Applied the “inherently dangerous in the
abstract” approach to felony murder and
determined that fraud is not a crime which is
inherently dangerous in the abstract
(although in this case, defendant’s actions
were probably inherently dangerous)
Corporate Murder
• Corporations commit murder through the acts
of their agents
– Ford Pinto
– Autumn Hills Convalescent Center
• Concerns about corporate murder stem from
concerns about vicarious liability in general
(imputing acts of one to another)
People v. O’Neil (1990)
Summary of case holding
• Court overturned appellate court’s decision ruling that
corporate officers could not be guilty of involuntary
• The supreme court looked at the actions of the
officer’s and determined that the officers were
responsible for running the plant the way they did,
they knew of the dangers to their employees.
• “A corporation is criminally responsible whenever any
of its high managerial agents possess the requisite
mental state and is responsible for a criminal offense
while acting within the scope of his employment.”
• Voluntary Manslaughter
• Intentional killing
• Done in the sudden heat of passion
– Timing of whether this was still in heat of passion is
determined by the facts of the case
• Without a cooling off period
– Objective test of cooling off time (would a reasonable
person under the same circumstances had time to cool
– State v. Flory (1929)
– Informed his wife was raped by her father…walked
all night directly to the father’s home and killed
him…the court ruled Flory had not cooled off…the
heinous combination of incest and rape was
enough to keep a reasonable person in a
murderous rage for at least several days.
• Voluntary Manslaughter - Continued
• Because of legally adequate provocation
– Provocation is both subjective (defendant himself was
provoked) and objective (reasonable person would be
– “Adequate Provocation” means that which is
“calculated to inflame the passion of a reasonable
person and tend to cause that person to act for the
moment from passion rather than reason”
– Types of provocation recognized as “adequate”
• Mutual combat
• assault and battery,
• trespass and
• adultery
• Voluntary Manslaughter
• Paramour rule: Common law rule that
held that a man who found his wife in the
arms of her lover was not guilty of
murder but rather voluntary
manslaughter (presumed that this would
be adequate provocation which would
cause sudden heat of passion)
• Voluntary Manslaughter
• Provocation by “Words”
– Words cannot be provocation (common law rule),
but there may be statutes that allow words to
suffice for provocation
– Example: Minnesota statute in text - never
– Last straw rule, smoldering or slow burn
resentment – words detonate a last straw rule:
Dennis v. State (1995)
• Provocation had to cause the sudden heat of
Model Penal Code
• Criminal homicide constitutes manslaughter
a. It is committed recklessly; or
b. A homicide which would otherwise be murder
is committed under the influence of extreme
mental or emotional disturbance for which
there is reasonable explanation or excuse.
– The reasonableness of such explanation or excuse
shall be determined from the viewpoint of the
person in the actor’s situation under the
circumstances he believes them to be.
Commonwealth v. Schnopps (1983)
Summary of case holding
• Schnopps argued that he acted in sudden heat of
passion (wife’s adultery and words) and therefore
should have been convicted of lesser degree of
• Court concluded that the jury had sufficient
evidence to find that defendant acted with
deliberately, premeditated malice aforethought.
(could have found that he lured his wife there,
that he planned to kill her based upon statements
made to co workers)
Involuntary Manslaughter
Actus reus –killing
Mens rea –unintentional killing
Involuntary Manslaughter
2 Types:
1. Criminal negligence manslaughter
– Generally includes both recklessness and
negligence (notwithstanding the name)
2. Unlawful act manslaughter (aka
misdemeanor manslaughter)
– Deaths that occur during the commission of
unlawful acts
Criminal Negligence/Vehicular/Firearms
• Criminal negligence manslaughter
– Actus reus – defendant’s acts create a high
(substantial and unjustifiable risk of death or serious
bodily injury)
– Mens rea – defendant is aware the risk of death or
serious bodily injury is high but commits the acts
• Most of these crimes involve unintentional
deaths caused by operating vehicles or firearms
(aka vehicular homicide, or criminally negligent
State v. Mays (2000)
Summary of case holding
• Court held that although defendant did
indeed commit vehicular homicide; it opined
that defendant was not shown to have
committed the worse form of vehicular
homicide, so he couldn’t be receive the
sentencing maximum.
• “the harm caused by the offense, while
senseless and tragic, was not greater than the
harm caused in every other aggravatedvehicular-homicide case.”
Unlawful Act Manslaughter
• Death that occurs during the commission of an
unlawful act
• Sometimes referred to as misdemeanor
• Encompasses any type of unlawful act (look at
• People v. Datema (1995)
– Husband slapped wife once, but she didn’t tense up
her neck (alcohol and marijuana in her system) and
had a torn artery which resulted in her death.
Defendant’s conviction upheld (Sentence: 20 years!)