| | MSK, trying to put square peg in round hole, wrote to Ethan:
If you are amenable, I will do some research on "depraved indifference homicide," but not right now. I will come back to this later. I, myself, want to see how USA law defines "depraved indifference" as motive.
Don't bother, I already found it for the state of Texas (didn't bother to look for any Federal outlines):
B. Omissions of an Act
1. A failure to act is generally not criminal
2. The exception is a where the actor (with the requisite mens rea) breaches a
known duty that exists due to:
a) Contract
(1) Commonwealth v. Pestinikas - Actors let old man wither and die after agreeing to care for him. They are found liable.
b) Statute (e.g., failure to file taxes)
c) Common Law
d) A relationship that creates a duty (i.e., parent-child)
e) Assumption of Care - If you start helping someone, you create a duty to finish
f) Creation of Peril - If you put someone in danger, you have a duty to help them.
3. The key question is: Is there a duty owed by the actor?
a) If an actor is unaware a duty has arisen, he is not liable
b) Also, it must be possible for the actor to perform the duty.
VI. Homicide
A. General Principles
1. Murder vs. Manslaughter
a) The basic distinction is murder requires malice aforethought, while manslaughter has no such requirement.
b) Modern Penal Codes make the following distinctions:
(1) Murder: intentionally or knowingly causing death (some add recklessly with extreme indifference to human life)
(2) Manslaughter: recklessly causing death
(3) Negligent Homicide: negligently causing death
2. Fetus rules: not murder until fetus is born, though many criminalize if the death is without the mother's consent.
B. Malice Aforethought
1. Defined - the intent to kill (actual or implied) under circumstances that do not excuse, justify, or mitigate to manslaughter
a) Intent to kill is implied if actor intends to inflict great bodily harm or if the "natural tendency" of his behavior is to cause death or great bodily harm
2. Malice applies to four types of homicides:
a) Intent to kill (Note that there is no need for premeditation, just an intent to kill)
b) Intent to cause great bodily injury
c) Depraved heart murder (depraved mind, depraved indifference, abandoned & malignant heart)
d) Felony murder (malice imputed)
3. Malice is essentially a state of mind requirement
a) It attaches to the result, not the act causing the result
(1) In 'intentional' or 'knowing' killings, this isn't a problem
(2) Depraved heart murder requires a 'reckless' state of mind (the same as manslaughter)
(a) The difference is the gravity of the risk created. For depraved heart murder, there must be a 'grave risk of death,' contrasted with 'substantial risk' for manslaughter.'
(b) Thus, for depraved heart murder, the actor must be reckless as to the result (death), and have created a grave risk of death (he need not be aware of the increase in risk from substantial to grave)
(c) Sometimes it is said for b, c & d above that the malice is 'implied.'
(3) Texas handles slightly differently; see below
C. Premeditated Killings
1. Many states distinguish 1st degree and 2nd degree murder by premeditation (deliberation on the idea of killing)
2. Time requirements for premeditation
a) There need not be a long time to deliberate
b) However, mere presence of time to deliberate is not evidence of deliberation
(1) State v. Bingham - Actor strangles woman while raping her in a secluded field. The approximately 5 minutes it took to strangle is not deliberation because it merely shows an opportunity to deliberate, not deliberation itself
(a) A pause between beating and strangulation would show deliberation
(b) The planned presence of a weapon would show deliberation
(c) Conduct or circumstances suggesting deliberation or a plan would also suffice
(d) Note the court's opinion in Bingham is not without argument: it could be argued that the transporting of the victim to the field evidenced a plan
D. Voluntary Manslaughter
1. Murder can be mitigated to manslaughter if there is an adequate provocation
2. Test for provocation
a) Provocation resulting in sudden and intense passion (not the result of a mental defect) that would cause an ordinary person to lose self-control;
b) Causal connection between passion and killing
c) No cooling off period between provocation and act
3. What characteristics of the actor do we assign to the "ordinary person?"
a) Assign too many and it becomes impossible to convict the actor.
b) Assign too few and the rules become too harsh.
c) State v. Raguseo - Actor obsessed with his parking space goes nuts, stabs victim who parked there.
(1) Majority uses purely objective point of view in evaluating the reasonableness of the actor's conduct
(2) Dissent says we should determine if the actor's conduct is reasonable for a person with the actor's emotional state
d) The standard here is deliberately vague, and thus open for discussion
(1) Some commentators suggest using the actor's handicaps and attributes, but not his personal moral values.
E. Involuntary Manslaughter (Reckless & Negligent Killings)
1. General Requirements: Unintentional killings in the course of…
a) Lawful acts in an unlawful manner (less than depraved indifference, but more than tort negligence)
b) Unlawful acts
F. Felony Murder
1. Generally, an actor is liable for killings occurring during the course of a felony; the intent for murder is implied from the felony.
a) This is often unjust - Ford v. State - Ex-con possesses a handgun (a felony); while cleaning it, it discharges, killing victim in apartment below. Ford is guilty of murder via the felony murder doctrine.
2. Many require the felony to be "inherently dangerous"
a) Some states view the felony in the abstract to determine dangerousness
b) Most look at the particular facts of the case
c) Note that a "inherently dangerous" does not mean a greater than 50% chance of death - otherwise it would be depraved heart murder
3. Some require 'foreseeableness' for felony murder to apply (though they often stretch this quite a bit)
a) Generally, the felony and the killing must be part of the same "chain of events"
4. Felony Murder and the Merger Doctrine
a) If the felony is an "integral part" of the resulting homicide, it merges with the homicide, so the prosecution must prove the mens rea element of the homicide.
b) Generally, it only applies to assaults; it prevents defeating the mens rea requirments for murder by pursuing assault plus felony murder.
5. Felony Murder and Third Parties
a) Should felony murder apply to co-felons or bystanders killed by the victim of the felony? (Or bystanders killing other bystanders, etc., etc.?)
(1) Some courts say any death resulting from the felony invokes felony murder, regardless of who caused it
(2) Others limit it to only those caused by the actor
(a) Agency theory - Felony murder only applies to killings by the actor or his co-felons (who are agents of the actor)
G. Murder and the TEXAS PENAL CODE
1. § 19.01 - Criminal Homicide - causing death with any mental state
2. Murder §19.02
a) Intentionally or knowingly causing death
b) Intends to cause serious bodily injury or commits an act clearly dangerous to human life that results in death
c) Felony murder (see below) (also, note those that elevate to capital murder)
3. Capital Murder § 19.03 (Murder as above, plus…)
a) Murder of a police officer or fireman
b) In the commission of kidnapping, burglary, robbery, aggravated sexual assault, arson, or obstruction/retaliation (More Felony Murder, see below)
c) Murder for hire
d) Prison murders
e) Multiple victims in one "criminal transaction"
f) Murder of someone under age 6
4. Manslaughter § 19.04
a) Recklessly causing death
5. Negligent Homicide § 19.05
a) Negligently causing death
6. Voluntary Manslaughter (sort of)
a) Texas has no voluntary manslaughter. However, the murder provision (§ 19.02) allows an actor to raise "adequate cause" (e.g., sudden passion, etc.) at the sentencing phase to reduce the sentence to a 2nd degree felony.
7. Intoxication Manslaughter § 49.08
a) Basically, drunk driving. No mental state required.
8. Felony Murder §19.02 (b)(3)
a) Killing during commission or attempted commission of a felony, or during immediate flight
b) Killing must stem from an act "clearly dangerous to human life"
(Edited by Teresa Summerlee Isanhart on 2/21, 4:10pm)
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