Chapter 10: Homicide
Criminal Law
Summer 2011
Murder
(Mississippi Code)
§97-3-19. “Murder” & “Capital Murder”
(1)The killing of a human being without the authority of law by any
means or in any manner shall be murder in the following cases:
(a) When done with deliberate design to effect the death of the person
killed, or of any human being;
(b) When done in the commission of an act eminently dangerous to
others and evincing a depraved heart, regardless of human life, although
without any premeditated design to effect the death of any particular
individual
Felony Murder
(Mississippi Code §97-3-19)

(c) When done without any design to effect death by
any person engaged in the commission of any felony
other than rape, kidnapping, burglary, arson, robbery,
sexual battery, unnatural intercourse with any child
under the age of 12, or nonconsensual unnatural
intercourse with mankind, or felonious abuse and/or
battery of a child in violation of subsection(2) of §97-539, or in any attempt to commit such felonies.
Manslaughter
(Mississippi Code §97-3-35)
The killing of a human being, without malice, in the
heat of passion, but in a cruel or unusual manner, or
by the use of a dangerous weapon, without authority of
law, and not in necessary self-defense, shall be
manslaughter.
Watson v. U.S.
1st Degree Murder
To prove meditation, government must show that a D
gave: “thought before acting to the idea to take a
human life and reached a definite decision to kill.”
No specific time must elapse between formation of
design to kill and actual execution of the design.
Some appreciable time must elapse between formation
of design to kill and actual execution of the design.
Reflection and consideration = deliberation
st
1
&
nd
2
Degree Murder
1st Degree Murder – calculated and planned
killing
2nd degree murder – unplanned or impulsive
State v. Thompson
1st Degree Murder
Passage of time is but one factor that can show that the
D actually reflected.
Direct or circumstantial evidence must convince the
jury beyond a reasonable doubt that the D actually
reflected.
Premeditation = intended to kill and after forming that
intent reflected before the killing.
People v. Payne
Intentional v. Depraved Indifference
Murder
Depraved Indifference Murder: Extremely dangerous and fatal
conduct performed without specific homicidal intent but with
a depraved kind of wantonness.
Indifference to life contrasts with intent to take it.
Generalized depraved indifference contrasts with intentional
killing directed at a single person.
Criminal liability for depraved indifference murder and
intentional murder is generally the same.
NOT depraved indifference in this case.
People v. Payne
Cont.
Examples of depraved indifference (heart) murder with
no intent to kill (no intended victim)
Shooting in occupied house
Speeding on crowded sidewalk
Shooting into a crowd
Placing bomb in public place
Opening the lion’s cage in the zoo
People v. Payne
Cont.
Examples of conduct directed at a particular victim,
without intent to kill, but with depraved indifference
to the victim’s plight
Continuous beating on 3 year-old child
Robbed an intoxicated victim and forced him out
of a car on the side of a dark, remote, snowy road
partially dressed, without shoes in subfreezing
temperatures (People v. Kibbe)
Felony Murder
Common law – Person is guilty of murder if he kills
another person during the commission or attempted
commission of any felony
Modern Statute – Death that results from the
commission of an enumerated felony (usually a
dangerous felony) constitutes 1st degree murder for
which the max penalty is death or life imprisonment.
This rule authorizes strict liability for death that results
form commission of a felony
People v. Burroughs
(1) look first to the primary element of the offense at
issue then (2) to the “factors elevating the offense to a
felony,” (a) to determine whether the felony, taken in
abstract, is inherently dangerous to human life, or (b)
whether it possibly could be committed without
creating such peril.
 Underlying felony must be “inherently dangerous to
human life” (Ds actions were not)
 In this case, practicing medicine without a license is
not inherently dangerous since one may commit the
felony without endangering someone’s life.

People v. Wilson
(Merger)
When the underlying felony is an “integral part” of the
homicide, the application of the felony rule wouldn’t
deter the offender from homicide.
E.g. Assault was the key part to the murder so it is
pointless to apply the felony murder rule.
People v. Lowery
Felony Murder rule applies “where the intended victim
of an underlying felony, as opposed to the D or his
accomplice, fired the fatal shot which killed an
innocent bystander.”
Jurisdiction follows the “proximate cause” theory of
felony murder, rather than the “agency theory” (which
renders the rule inapplicable to the killings done by the
victim).
Proximate cause test = foreseeability.
People v. Lowery
Cont.
Proximate cause theory – liability attaches under the F-M rule for
any death proximately resulting from the unlawful activity – not
withstanding the fact that they killing was by one resisting the crime
Show causation through proximate cause then D would be liable
despite shot being done by 3rd party
Agency theory – used in majority of jurisdictions; Doctrine of felony
murder does not extend to a killing, although growing out of the
commission of the felony, if directly attributable to the act of one
other than the D or those associated with him in the unlawful
enterprise. Thus the Felony-murder rule is inapplicable where the
killing is done by one resisting the felony.
In this case the felony-murder doctrine applies b/c the D was
considered the proximate cause due to the state.
Commonwealth v. Malone
Killing resulted by an act intentionally done by the D
in reckless and wanton disregard of the consequences.
D guilty of 2nd degree murder (no intent)
Gross negligence
Malice is evidenced by the intentional doing of an
uncalled-for act in callous disregard of its harmful
effects on others.
Intentional act to harm (means) that leads to
unintentional result (death) = 2nd degree murder
State v. Gounagias
If the act of killing, though intentional, be committed under
the influence of a sudden, intense anger, or heat of blood,
obscuring the reason, produced by an adequate or
reasonable provocation, and before sufficient time has
elapsed for the blood to cool and reason to reassert itself, so
that the killing is the result of temporary excitement rather
than wickedness of heart or innate recklessness of
disposition, then the law, recognizing the offense so
committed as of less heinous character than premeditated or
deliberate murder.
-Measured by the conduct of an “average man.”
Girouard v. State
Words spoken by the victim, no matter how abusive or
taunting, are not sufficient to reduce murder to
manslaughter.
Court reasoned: that it “cannot in good conscience
countenance holding that a verbal domestic argument
ending in the death of one spouse can result in a
conviction of manslaughter.”
Girouard v. State
Traditional circumstances that mitigate murder to
manslaughter
Extreme assault or battery upon the D
Mutual combat
D’s illegal arrest
Injury or serious abuse of a close relative of D
Sudden discovery of a spouse’s adultery
People v. Roche
MPC §210.3
Extreme emotional disturbance defense
Two Components:
1. Acted under EED (mental infirmity typically
manifested by loss of self-control) – circumstances of D’s
conduct as perceived by D (subjective element), AND
2. Emotional disturbance supported by a reasonable
explanation or excuse – D’s conduct reasonable as
perceived by a reasonable person (objective element)
People v. Ashland
“Cooling off”
“The law will not permit the D to deliberate upon his
wrong and, avenging it by killing the wrongdoer, set up
a plea that his act was committed in the heat of
passion.”
The opportunity to “cool off” is a rigid bar to the
defense.
In re Fraley
Rekindling
If in fact the D’s passion did cool, which may be shown
by circumstances, such as the transaction of other
business in the meantime, rational conversations upon
other subjects, evidence of preparation for the killing
etc., then the length of time is immaterial.
If the D’s passion did not cool yet if such time
intervened between the provocation and the killing
that the passion of the average person would have
cooled, then there still is no reduction of the homicide
to manslaughter.
State v. Flory
Rekindling
More than a day had passed since the D learned his
father-in-law had raped D’s wife.
D was allowed to raise a provocation defense b/c the
victim’s words re-kindled the passion that was aroused
when D first heard of the attacks.
Crime of deceased was most heinous and was
calculated to create a most violent passion in the mind
of D, and it is hardly expected to subside within so
short a time, especially when past facts clearly recalled.
People v. Patterson
An action influenced by an EED is not one that is
necessarily so spontaneously undertaken.
Rather, it may be that a significant mental trauma has
affected a D’s mind for a substantial period of time,
simmering in the unknowing subconscious and then
inexplicably coming to the forefront.
People v. Berry
General rule – words alone are not enough
provocation
Court reversed and said it was enough provocation
(contrary to traditional view)
Escalation
Cumulative effect of provocation
State v. Follin
No provocation defense
Killing of innocent bystander does not qualify as
manslaughter, upon the assumption that a reasonable
person would never be so greatly provoked as to strike
out in blind anger at an innocent person.
Simpson v. U.S.
Court refused to give voluntary manslaughter
instruction
Appellate court noted that under MPC the D might be
entitled to have the jury consider “the despair and
frustration” that he felt.
People v. Beiter
Negligent Homicide

D’s conduct did not amount to criminal
negligence – simply declaring that her conduct
does not constitute gross deviation from the
ordinary standard of care.
A person acts with criminal negligence with respect
to a result or circumstance “when he fails to
perceive a substantial and unjustifiable risk that
such result will occur or that such circumstance
exists. The risk must be of such nature and degree
that the failure to perceive it constitutes a gross
deviation from the standard of care that a
reasonable person would observe in the situation.
Chapter 11
Criminal Law
Summer 2011
TA Session
Scope
Larceny
Robbery
Burglary
Common Law Larceny
Six Elements of Larceny at Common Law:
trespassory (unlawful) taking (caption –
securing dominion over) and carrying away of
the personal property of another with intent
to steal it.
Taking occurs when the offender secures dominion
over the property.
Carrying away requires some slight movement of the
property
Larceny
Expanded focus on the intent element of the crime.
Intent to permanently deprive the owner of the
property.
Larceny has also expanded to situations where an
individual, possessing the requisite intent, exercised
control over property inconsistent with the continued
rights of the owner.
Larceny
Common law larceny – limited to the taking of
tangible personal property (excluded deeds, checks,
stocks, bonds, written instruments)
Sufficient for a taking if the offender exercises control
or dominion.
Property must be “of another” which excludes such
items as abandoned property and wild animals.
Larceny
Modern larceny statutes include both tangible and
intangible property.
One must intend to deprive the owner of the
possession of his property either permanently or for an
unreasonable length of time, or intend to use it in such
a way that the owner will be deprived of his property.
Requires both specified physical conduct and a
specified state of mind.
D’s conduct and state of mind must coincide.
Larceny/Theft
The taking, transfer, or other disposition of another’s
property without that person’s valid consent is
prohibited by theft and related offenses.
In the MPC, 3 sections define the common means of
effecting theft: (1) by unlawful taking or disposition,
(2) by deception, and (3) by threat (extortion).
Larceny/Theft
A person is guilty of theft if he unlawfully takes or
exercises unlawful control over, moveable property of
another with purpose to deprive him thereof (MPC
§223.2)
Requires the taking or control be “unlawful”
Requires a specific purpose to permanently deprive
This section applies on to “movable property”
People v. Olivo
Larceny in the context of shoplifting is an intent to
exercise dominion and control over personal property
that is inconsistent with the continued rights of the
owner.
It does not matter that the D has not left the store with
the property.
Robbery
Robbery consists of a trespassory taking and carrying
away of the personal property of another with intent
to steal the property form the person or presence of
the other by means of force or putting in fear.
Robbery, a common law felony and today a statutory
felony, regardless of the amount taken may be thought
of as aggravated (forcible) larceny.
MPC Robbery
§222.12
A person is guilty of robbery if, in the course of
committing a theft, he:
A. Inflicts serious bodily injury upon another; or
B. Threatens another; or
C. Commits or threatens to commit
Robbery
Taking of personal property form the person or
presence of another by force or threat of force.
Robbery requires an intent to permanently deprive.
Separate offense is carjacking (car robbery). Unlike
larceny and robbery, it does not require an intent to
permanently deprive.
Burglary
Common law – breaking and entering the dwelling house of another
in the nighttime with the intent to commit a felony
Common definition of nighttime: when there is insufficient light to
see a person’s face, except by artificial light or moonlight.
If intent was to commit a simple trespass, D was not guilty of burglary
although he committed a felony after entering.
If the intent was to commit a felony, it made no difference that this
purpose was not achieved.
Burglary does not require a taking of property, trespassing with the
intent to steal suffices
Trespass – upon a piece of real property.
Burglary
§221.1
MPC burglary is to enter a building or occupied
structure with purpose to commit a crime therein, … It
is an affirmative defense that the building or structure
was abandoned.
Burglary is a felony in the 2nd degree if it is perpetrated
in the dwelling of another at night.
MPC defines “night” as the period between 30 minutes
past sunset and 30 minutes before sunrise.
Burglary
Element: Breaking
“actual” breaking – using force to open a door
Requires some use of force to gain entry, but minimal force is sufficient
Breaking must be to gain entry
“constructive” breaking – using fraud or threats
no physical force used
“obtaining admission to a dwelling-house at night, with the intent to commit a
felony therein, by means of artifice or fraud upon a pretense of business or
social intercourse (threat, fraud, or intimidation)
“Breaking” does NOT require anything to be physically broken by causing damage
Whether a breaking is actual or constructive it must happen contrary to the will
of the occupier of the house.
Burglary
Element: Entering
Entering is defined as the entry of a building by a part of the
body, or entry of a tool which was intended to consummate the
felony
Common law – generally required that entry occurs as a
consequence of the breaking
If a person walks into a home through a wide open door it isn’t
“burglary”
Instrumentality rule – insertion of a tool or inanimate object
into the structure is entry if it is entered for the purpose of
accomplishing the felony. It is not sufficient if it was entered only
to gain entry.
When a tool is used to break and steal, there has been a burglary
Burglary
Element: Dwelling
A dwelling can be any type of habitation
House includes a temporarily unoccupied dwelling but not a
building used only occasionally as a habitation
Temporary absence of those dwelling in a structure will not
deprive it of its character as a dwelling.
It does not remain a dwelling after the last inhabitants have left if
there is no intent to return, nor is it a dwelling before any
inhabitants have moved in, even if it was built as a dwelling.
Burglary
Element: Of Another
A person cannot be convicted of burglarizing his own
home, even if there is a felonious purpose, so long as
there is no invasion of a possessory right to habitation
The requirement is that the structure be used as a
dwelling by someone other than the D.
OCCUPANCY, rather than ownership is material.
A person who leases a home to another can be
criminally liable for burglarizing that home.
Burglary
Element: During the Night
MPC – hours between half an hour after sunset and
half an hour before sunrise
Common law – when there is insufficient light to see a
persons face except by artificial light or moonlight
MS – Burglary element of nighttime was deleted.
Burglary
Element: With the Intent..
D must have intended to commit a felony at the time
of entry
If the intent is formed after the entry has been
accomplished, burglary is not committed