Homicide

Elements

  1. Another Living Human Being
    1. Life
      1. C /L
        1. Fetus fully expelled from body + indep. circulation
        2. Imp. evid. were breathing & crying but not part of def.
      2. CA
        1. By PC 187, makes killing of fetus murder w/o consid. of viability
        2. Exception 4 abortion
    2. Death
      1. C /L
        1. Heart - lung test where irreversible cessation of heart & lung
      2. Modern
        1. Brain death test which is princ. / alt. in most states
        2. In CA, either heart lung / brain dead test ok
  2. Unlawful Killing / Actus Reus
    1. Shortening of Life By Any Method
      1. Could B an act / commission /
        1. Phys'al act /
        2. Words
      2. Omission if duty
        1. No gen. legal duty 2 rescue strangers
        2. Duty if spec. rel.
          1. Parent -ch. rel.
          2. Taking charge of helpless person
    2. S /L
      1. In C/L, yr. & day
      2. In CA, 3 yrs. as rebuttable presumption
  3. Causation
  4. Malice Aforethought (M/A) / Intent / Mens Rea
    1. Murder v. Mansl.
      1. Must have M/A 4 murder & mansl. doesn't have it in C/L
    2. Murder Intent / Malice Quartet
      1. Intent 2 kill
      2. Intent 2 inflict great bodily harm
        1. Deadly weapon presumption
      3. Depraved heart
        1. Act creating very risk of death / great bodily harm
        2. Little / no soc'l utility
        3. Some awareness of risk
          1. Subj. in CA
          2. Other states & Eng. it's obj. / rsbl person stand.
        4. Lack of justific., excuse / mitig.
        5. This uses D's axn 2 det. D's M/S
      4. Felony murder
        1. If homicide while in perp. of felony
          1. End of perp. when D reaches place of temp. safety (subj.)
        2. Limiting the doc.
          1. PA do it by saying no prox. cause
          2. CA req. killing by felon / co-felon
    3. Modern Degrees of Murder
      1. CA First Degree
        1. Death penalty only 4 1st degree
        2. Types
          1. Intent 2 kill + premed. & delib.
            1. Premed. by thinking before hand
            2. Delib. if calm, not impulsive / passionate
            3. Choice & avail. of weapon 2 infer premed. & delib.
            4. Length of X but can have premed. & delib. right before
            5. Motive
            6. Nat. of killing
            7. MPC would do away w/premed. & delib. & go by aggravating & mitigating circ's 4 levels of homicide
          2. Felony Murder
            1. If homicide while perp. of listed felony in PC 189
          3. Depraved heart
            1. By using lang. of PC 189, 'ed 2 1st degree (like human shield)
            2. MPC would elim. felony murder & analyze like this
      2. Second Degree
        1. Other murder other than premed. & delib. + intent 2 kill
        2. Felony Murder w/Inherently Dang. Felony Not Listed
          1. In abstract see if inherently dang. 2 human life +
          2. High probability that act will result in death
          3. Felony must B indep. of murder / can't B assaultive
          4. Should look @ underlying intent of felony 2 det. if indep. incl'ing burglary which is listed in CA
  5. Justification, Excuse, / Mitigation
    1. Murder v. Mansl.
      1. Murder req's none of these
      2. Mansl. req's no justifi. / excuse @ C/L
    2. Vol. Mansl.
      1. Intent 2 Kill Still Exists
      2. Heat of Passion
        1. Provocation
          1. C /L
            1. Sight of adultery
            2. Staggering blow even during fight
            3. Violent felony on self / close relative
            4. Illegal arrest
          2. C /L not recog.'ed
            1. Learning of adultery (modern ok)
            2. Slight battery
            3. Insulting words
            4. Trespass
            5. Non-dang. crime
          3. Modern not as categorical
        2. Suff. 2 tempt rsbl person 2 kill
        3. D actually impassioned
        4. No opp. 4 rsbl person 2 cool off
        5. D actually did not cool off
      3. Imperfect Self Defense (disc. later)
    3. Invol. Mansl.
      1. No Intent
      2. Creation of risk of death / great bodily harm
        1. Awareness of risk (CA)
        2. Risk of
          1. Gross / criminal neg. gen'ly
          2. Ord. neg. 4 CA vehicular mansl. (leg. can always do this)
      3. Illegal Act / Msdr Mansl.
        1. Malum in se (moral wrong & evil)
          1. Auto. invol. mansl.
        2. Malum prohibitum (stt. prohibition / reg. )
          1. Some if death foreseeable
          2. Some if death from unlawful excess
          3. Some if death from crim. neg.

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Ms. Haeji Hong

January 15, 1998
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