murder.
(n.b. -- avoid the word "punishment" when describing utilitarian arguments) (n.b. -- murder and homicide are two different things.)
common law homicide: malice aforethought.
mpc 210.3
this came to just be the "mental marker" for the states at which homicide happens.
1. intent to kill
knowledge that your act will result in death
is it premeditated? YES -- then 1st degree
is it premeditated? NO -- then 2nd degree
2. intent to cause
grevious bodily harm... if you stab someone, you definitely intend to inflict grievous bodily harm,
though you may not necessarily intend to kill
3. depraved heart
a reckless killing, done in circumstances where we want to say that it's as bad as murder.
rideout: does that strike us as bad as murder in regina v. blaue? what about state v. heidgen?
4. felony murder
is it a felony murder? YES -- than 1st degree
is it a felony murder? NO -- than 2nd degree
manslaughter: unlawful killing of a human being without malice
is either volutary or involuntary (where involuntary does not amount to a felony)
1. intent to kill (heat of passion upon adequate provocation, voluntary/1st degree)
2. killing during an unlawful act that is a misdeameanor may be manslaughter (involuntary)
3. reckless/negligent (involuntary/2nd degree)
murder has always been wrong. why do we also allow manslaughter? because it's an original anti-death penalty development (intro to article that is similar to simons' recap)
malice aforethought: premeditated v. nonpremeditated -- it makes all the difference, particularly in common law states like cali
state v. guthrie
guthrie has a slew of psychiatric problems and the deceased (who was his friend) was trying to cheer him up during a panic attack, and he killed the guy.
intent to kill -- stabbed him in the neck
but was this in the heat of passion? friend did not give sufficient provocation
under VA law, is this premeditated and deliberate?
court quotes schrader (which cites cardozo) that "knowing and intentional" and "twinkling of an eye" is premeditation...
but if premeditated and deliberate is 1st degree, and not premeditated is 2nd degree, what's the distinction here?
culpability: there's a retributive argument that premeditation and deliberation is choice and exercise of free will and is therefore higher culpability than killing on purpose but without giving yourself a chance to think. additionally, premeditation is more deterable.
under WV law as defined by schrader, is it possible to kill someone intentionally, without premeditation??? NO... so what the hell is the distinction between 1st and 2nd?
a choice for the jury to be more lenient and merciful.... that can be good but it is also arbitrary in an unguided discretionary decision
guthrie court at least realizes this and overrules the schrader opinion.
"any interval of time... which is of sufficient duration for the accused to be fully conscious of what he intended"
morrin: "not all murders reflected the same quantum of culpability on the part of the wrongdoer"
"to premeditate is to think about beforehand"
"to deliberate is to measure and evaluate"
morrin does a better job of delineating the policy and textual distinction between premeditation and intentionality without real forethought. however, is this a *good* distinction to separate the worst from ordinary murders?
midgett.
the best part of this case is the gene tierney-like moment where he rushes rodney, jr. to the hospital...
on appeal, the conviction is affirmed for 2nd degree murder because the court says the intent was not there to kill him, but instead was only intent to inflict grievous bodily harm.
under common law, intoxication a defense to 1st degree murder but not to 2nd degree. it really helps midgett to be drunk.
it really helps midgett to have been continuously beating his son.
what's wrong with this case?
culpability (with and without link to premeditation...)
(1) prior abuse: thought
(2) size: obvious risk
(3) parental duty
(4) child is victim
forrest.
what's the common law mental state?
but forrest took a gun to the hospital... which is something we don't want people to do anyway.
is the harm the same or different as in the midgett case?
gut reaction is that the culpability is lower
(1) mercy (motive)
(2) father was going to die anyway
(3) forrest knows he did something wrong and he did it anyway
the courts in forrest and midgett accurately applied the distinction between 1st and 2nd degree murder. so do we just live with it, or do we want to change these laws?
should premeditated/deliberate or heat of passion be the distiction? HA HA -- not even the NYS distinctions...
nypl 125.
nb. physical injury is something that inflicts pain. serious physical injury is something that is permanent and/or creates a risk of death
criminally negligent homicide is negligence (unintentional) at grade E
manslaughter 1 is intent to inflict specific physical injury OR intent to kill under extreme emotional disturbance at grade B
manslaughter 2 is recklessness (unintentional) at grade C
125.25
murder 2: class A1 felony, basic intentional killing or depraved intent (unintentional, but still murder), or accompaniment of another murder (felony murder)
murder 1: PREMED and DELIBERATE does not appear in nypl
how do we get to murder 1?
murder 1 has a lot to do with who the victim is:
(a) defendant must be over 18
(b) victim is a cop
(c) victim is a peace officer
(d) victim is a prison guard at state facility, on duty and D knew/should have known
(e) defendant is serving at least 15 to life
(f) witness tampering
(g) murder for hire
(h) during serious felony
(i) multiple killings
(j) d has prior murder conviction
(k) torture
(l) serial murders
(m) v is judge
(n) terrorism
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