CRIMINAL LAW OUTLINE

OFFENSES AGAINST THE PERSON

I.

Homicide
A. Unlawful killing of a human being
i. Human being
1. Fetus2. Unborn child- in LA, moment of fertlization
Murder I
ii. Premeditation
1. No exact definition of time. Three guides:
a. Planning activity
b. Motive
c. Manner of killing
iii. Felony Murder
1. Unlawful killing of a human being
a. During the commission of a felony
b. During the attempt to commit a felony, or
c. While in flight after the commission of a felony
i. Does not last forever but
ii. Must be one criminal transaction
2. Predicate felony
a. Inherently dangerous to human life
i. Look at the felony in the abstract, not the particular facts of the
case
1. Exarmed robbery is a felony and is inherently dangerous
to human life
2. Eximpersonating a government official is a felony but not
inherently dangerous to human life
b. Cannot be predicated on assault
i. Merger doctrine
1. Every murder requires an assault
2. If any assault resulted in death, could be charged with
felony murder every time (which is first degree murder in
most jurisdictions)
3. Legislature did not intent to convert every assault resulting
in murder into first degree murder (Felony murder)
4. Therefore, assault can never be the predicate felony for
purposes of felony murder because it merges with the
resulting homicide
c. Look to the Statute
i. Enumerated felonies within statute
1. Burglary, robbery, arson etc.
2. No enumerationduring commission of felony CHOOSE
a. Inherently dangerous to human life
b. Any felony, or
c. Intent to commit a felony
3. Mixedenumerated and any other felony CHOOSE
a. Inherently dangerous to human life
b. Any felony, or
c. Intent to commit a felony
B. Murder II
i. Malice
1. Unlawful killing with malice
a. Malice is Extreme indifference to human life

i.
ii.
iii.
iv.

Firing gun into train

Driving speed boat through a crowd of swimmers
Firing gun into an occupied room
Throwing stones from roof of tall buildings

C. Manslaughter
i. Unlawful killing without malice
1. Voluntary Manslaughter
a. Intentional killing in the heat of passion with sufficient provocation
i. Adequate provocation recognized by law
ii. Actual provocation
iii. Words are sufficient in some circumstances
b. Imperfect self defense
i. Subjective belief that life is threatened BUT
ii. That belief is unreasonable
2. Involuntary Manslaughter
a. Criminal Negligence
i. Reasonable person could foresee risk of great bodily harm or
death OR/AND?
ii. Gross deviation form the reasonable standard of care
b. Misdemeanor Manslaughter
i. Death during the commission of a misdemeanor
1. Misdemeanor must carry reasonably foreseeable risk of
appreciable physical injury
Book Cases: Patterson v. New York Supreme Court of US 1977
Facts: After a brief and unstable marriage, Gordon Patterson became estranged from his wife, Roberta. She,
then, started seeing her ex-fianc, Northup. Patterson borrowed a rifle, went to his father-in-laws house, and
saw his wife semi-undress with Northup. He went into the house and shot him twice in the head.
Procedural History: Patterson was charged with 2nd degree murder. In New York, there are two elements of
this crime: intent to cause the death of another and causing the death of such person or a third person. Malice
aforethought is not an element of a crime.
-Patterson was found guilty of murder. Under the Maine statue, a person accused of murder could rebut he
statutory presumption that he committed the offense with malice aforethought by proving that he act in the
heat of passion on sudden provocation. Under Maine law of homicide, the burden could not be constitutionally
placed on the def. of providing the preponderance of the evidence that the killing had occurred in the heat of
passion.
Issue: Is it unconstitutional under the Due Process Clause of burdening the def in a NY state murder trial with
proving the affirmative defense of extreme emotional disturbance as defined by NY law?
AFFIRMATIVE DEFENSE- shifts the burden upon the def. to prove a particular fact
PERPONDERANCE OF THE EVIDENCE- the greater weight of the evidence required in a civil (non-criminal)
lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other.
Holding: NO, courts hold that they cannot conclude that Pattersons convictions under NY deprived him of due
process.
Rules Applied: The state of NY permits a person accused of murder to raise an affirmative defense that he
Acted under the influence of extreme emotional disturbance for which there was a reasonable explanation.
Reasoning: the court looks to the due process clause protects against conviction except upon proof beyond a
reasonable doubt. The court states that intentional killing is proven and there is nothing in the evidence that
anything relating to his mental state at the time of the crime. Due to lack of evidence to convince the jury that

Pattersons affirmative defense had been made out, the court also finds that no constitutional violation
occurred.
In LA, 1st degree- aggravated burglary
1. Challenged due process, framed it as a criminal law issue, in order to prove his own emotional
disturbance, its being raised as a defense can reduce it to voluntary manslaughter if it can be
proven.
2. Shifting of Burden3. Affirmative Defense requires him to prove it *
A.
Supreme Court issue because it is the prosecutors job to prove it; He cant just make the
allegation, Its not the prosecutors job to prove hes insane.
B.
New York has created a criminal code of expanding extreme emotional disturbance..if youre
sudden in this heat of passion intentionally, why allow people to have a reduce charge if they cant
control their anger?
C.
The requirement of proof beyond a reasonable doubt in a criminal case bottomed on a
fundamental value determination of our society..
D.
R.V. Vickers
Facts: Vickers broke into a cellar of shop, which was occupied by a 73-year-old woman named Miss. Duckett.
With intention to steal money. Miss Duckett saw the def. and was attacked causing her to fall. Evidence
showed she was struck 10-15 times and kicked in the face. Death was due to general injuries.
Procedural: trial court- capital murder under homicide act of 1967 which was done in the course of theft and
sentenced to death. Appealed, dismissed, conviction of guilty for capital murder
Issue: can malice aforethought be implied if the victim was killed by a voluntary act done with intention to
cause grievous bodily harm?
Holding: it must be shown that independently of the fact that the accused is committing another offence, the
act, which caused the death, was done with malice aforethought as implied the law. The existence of
expressed or implied malice is preserved by act of 1957 which caused the appeal to fail and to dismiss
Reasoning: if person does an act on another, which amounts to the infliction of grievous bodily harm, he cannot
say he did not intend to go so far
Rule: Homicide Act of 1957 says, where a person kills another in the course of furtherance of some other
offence, the killing shall not amount to murder unless done with the same malice aforethought (expressed or
implied) as it requires for a killing to amount to murder, when not done in the course of the furtherance of
another offence
Construstive malice: If a person caused death during the course of carrying out his felony, which involved
violence, that always amounts to murder
Malice aforethought is either an expression intention to kill as could be inferred when a person, having uttered
threats against another, produced a legal weapon and used it on him or implied contention to kill as which
inflicted grievous bodily harm in a voluntary act intended to harm him and victim dies
If he intends to inflict GBD and that person dies, it is sufficient to imply malice aforethought which is needed to
constitute murder
Malice will be implied if the victim was killed by a voluntary act of the accused, done with the intention either to
kill or to some GBH.

GBH need not be permanent, it must be serious, and it is serious or grievous if it such a seriously to interfere
with the health or comfort of the victim

Commonwealth v. Mclaughlin 1928 Vehicular Homicide

Facts: Mclaughin was driving a car with 2 other people in it. He was going in the same direction that the three
victims, a husband and a wife with their baby in a baby coach were walking on the road at 1030 p.m. Def. hits
them,downhill, killing the husband and baby and severely injuring the wife at 20-25mph . Def. drives 200 feet
away before he turned around and tried to help the victims by putting them in cars to bring them to the hospital.
Def. said he tried to swerve to the right bc he thought they were moving left, and then the victims went to the
right. May have been intoxicated, well lit street, had room to around them, knocked the bodies around 15-20
feet
Procedural hx: a jury convicted the def. of 2nd degree murder, and def. applied stating that the evidence does
not determine a crime
Issue: under La criminal law, is there sufficient evidence to sustain the conviction of 2nd degree murder when
the def. hits and kill 3 people with his car?
Holding: NO, there is not sufficient evidence to sustain the conviction for 2nd degree murder.
Rule: murder is the unlawful killing of a human being with malice aforethought, express or implied. 2nd degree
is define with the same elements as 1st except for the intention to kill
Reasoning: the court found that it is not often that a MVA resulted in a murder charge. Malice is an essential
element of 2nd degree, and malice as not found in this case. Malice is the wanton and reckless conduct of one
who kills another with wicked disregard of the consequences of his act. In this act, his actions dont support a
wicked disregard of the consequences bc he tried to help the people he hurt. No evidence of specific intent to
hit the victims bc he did not see the ppl in the road quickly enough, should not convicted
*Under LA Law, how will you charge Mclaughlin?
1st degree/2nd-always look for specific intent first, its a catch all
Manslaughter-must be 1st or 2nd for voluntary
Involuntary- felony, intentional misdeamnor directing affecting a person?
Memorize : Definitions
(1) "Another" refers to any other person or legal entity, including the state of Louisiana or any subdivision
thereof.
(2) "Anything of value" must be given the broadest possible construction, including any conceivable
thing of the slightest value, movable or immovable, corporeal or incorporeal, public or private, and including
transportation, telephone and telegraph services, or any other service available for hire. It must be construed in
the broad popular sense of the phrase, not necessarily as synonymous with the traditional legal term
"property." In all cases involving shoplifting the term "value" is the actual retail price of the property at the time
of the offense.
(3) "Dangerous weapon" includes any gas, liquid or other substance or instrumentality, which, in the
manner used, is calculated or likely to produce death or great bodily harm.
(4) "Felony" is any crime for which an offender may be sentenced to death or imprisonment at hard
labor.

(5) "Foreseeable" refers to that which ordinarily would be anticipated by a human being of average
reasonable intelligence and perception.
(6) "Misdemeanor" is any crime other than a felony.
(7) "Person" includes a human being from the moment of fertilization and implantation and also
includes a body of persons, whether incorporated or not.
(8) "Property" refers to both public and private property, movable and immovable, and corporeal and
incorporeal property.
(9) "Public officer", "public office", "public employee", or "position of public authority" means and applies
to any executive, ministerial, administrative, judicial, or legislative officer, office, employee or position of
authority respectively, of the state of Louisiana or any parish, municipality, district, or other political subdivision
thereof, or of any agency, board, commission, department, or institution of said state, parish, municipality,
district, or other political subdivision.
(10) "State" means the state of Louisiana, or any parish, municipality, district, or other political
subdivision thereof, or any agency, board, commission, department, or institution of said state, parish,
municipality, district, or other political subdivision.
(11) "Unborn child" means any individual of the human species from fertilization and implantation until
birth.
(12) "Whoever" in a penalty clause refers only to natural persons insofar as death or imprisonment is
provided, but insofar as a fine may be imposed "whoever" in a penalty clause refers to any person.
B. In this Code, "crime of violence" means an offense that has, as an element, the use, attempted use,
or threatened use of physical force against the person or property of another, and that, by its very nature,
involves a substantial risk that physical force against the person or property of another may be used in the
course of committing the offense or an offense that involves the possession or use of a dangerous weapon.
The following enumerated offenses and attempts to commit any of them are included as "crimes of violence":
State v. Hokenson, 96 Idaho 283, 527, P 2d 487 (Id S. Ct. 1974)
Facts: The def. armed with a knife and a homemade bomb, entered a drug store with the intent to commit a
robbery with drugs as his motive. Dean, the storeowner, and the def. proceeded to engage an altercation in
which Dean managed to get the bomb away from the def. While the cops were trying to detain him, the bomb
went off and killed one officer while injuring another along with Dean.
Procedural History: Found guilty of 1st degree murder by the 2nd Judicial District of Court of Nez Perce County
sentencing him to life without parole
Issue: Is that def. liable for first degree murder considering that intended target was not killed, and that since
he was under arrest and in custody at the time of the explosion, had the crime been terminated making him not
liable for the death of the officer?
Rule: Homicide is established in Commonweath v. Banks where it says liability would be imposed where the
conduct causing the death was done in furtherance of the design to commit the felony, In short, the def. may
be held liable for a death if the death is caused by recklessness even while they are in custody.
Holding: Court holds that the appellant was guilty of 1st degree murder and the life sentence is affirmed.
Reasoning: 1st degree bc of premeditation, the state argued that the def. acted recklessness with regard to
human life when he knowingly brought a bomb to the robbery knowing the full extent of its capabilities.
Result: affirmed
Armed robbery! enumerated felony
Specific intent to kill? NoIn LA, for specific intent, he must be the object of the felony.
Still engaged in the enumerated felony?

In LA law, 2nd degree, enumerated felony, aggravated burglary, killing of a police officer
The statue requires no showing that the homicide took place during the attempted robbery. The appellants act
of carrying an active bomb into the store, knowing it to be extremely dangerous as shown by his handling
manifests extreme indifference to the value of human life.
Criminally liable for the natural and probable consequences is general intent

People v. Patterson CA 1989

Facts: Licerio, who is deceased, and Lopez used cocaine on a daily basis. On the day of the incident, the two
women were using with Patterson (def.) who supplied the cocaine. Licerio became ill; they called an
ambulance. However, the medics could not revive her. Charged with murder, possession of cocaine, and
possession of cocaine for sale.
Procedural Hx: Trial court said the doctrine was inapplicable to the case, and the appellant court affirmed.
People appealed saying 2nd degree murder included inherently dangerous felony by transporting and offering
controlled substances. Court of Appeal reversed the decision.
Issue: Does the 2nd degree murder doctrine apply to a def. who only supplies cocaine to a person who dies
from using it?
Rule: In determining whether a felony is inherently dangerous to human life under the 2 nd degree murder felony
doctrine, the elements of the felony in the abstract not the particular facts of the case (People v. Williams)
Holding: No, inapplicable to this case
Reasoning: The court turns to People v. Ford to help define the 2 nd degree murder doctrine rule which defines it
as a homicide that is a direct causal result of the commission of a felony inherently dangerous to human life..
to determinelook to the elements of the felony in abstract, not the particular Facts of the case. The court
rejects the suggestion to expand this doctrine.
Result: reversed and remanded to trial court
In LA, could be 2nd degree, enumerated felony, proximate or direct cause of death by dispensing drugs
Felony-murder rule ( under Common law) generally acts as a substitute for the S.I., mens reas,
-hold the people accountable if they have no intent to kill if they participate in something inherently dangerous
to human life (2nd degree murder in LA)
-instead of specific intent, instead of mens reas
Implied malice for which the 2 nd degree felony-murder doctrine act as a substitute, has both a physical and a
mental component. The physical component is satisfied by the performance or an act, the naturalFILL IT IN
-We will substitute your intent to kill that specific intent for doing what you did in the first place.
State v. Mayle (West Virginia ) 1987
Facts: On Dec. 1981, Def. and another person tried to rob a McDonalds, but the employees did not know the
safe combination. Then, they took the keys of an employee and stole their car. During the search for them, an
officer apprehended them. Another cop heard gunshots and witnesses saw men matching the description of

robbers standing over the body of the cop. The ski masks had hair that matched the def. and his friend near
the car and the radio from the stolen car was found as well.
Procedural Hx: Circuit court in W.V. found him guilty of felony murder. Conviction
Issue: Was the court justified in their guilty verdict for the defendant?
Rule: West Virginia Code subsection 61-2-1 defines felony murder as murder by poison, lying in wait,
imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or
attempt to commit, arson, rape, robbery, burglary, is a murder of the 1st degree.
The state is required to prove the commission of one or more of the enumerated felonies; the def.s
participation in such commission or attempt; the death of the victim as a result of injuries received during the
course of such commission or attempt.
Holding: W.V. Supreme Court affirmed the Circuit Courts ruling of 1st degree.
Reasoning: Because although the specific act of the robbing of McDonalds was complete, they were still
fleeing from the crime. The act was still in process after they murdered the first officer.
Result: affirmed
ENGAGED IN ENUMERATED FELONY?
KING V. STATE (AL.CR.APP. 1987)
Facts: After leaving a nightclub, appellant and his friend got into their car and followed two individuals in which
they had a minor altercation with earlier that night. While on the hwy., appellant fired shorts in their
vehicle with a purpose to mess with them and shoot the tires out. One of the bullets struck Reeves in
the head, and he died.
Procedural: King was convicted of murder, count one, and he appealed asserting that the state did not prove
that the appellant manifested extreme indifference to human life.
Issues: Under AL criminal law, did the state prove King manifested extreme indifference to human life causing
appellant to be convicted of reckless murder after he fired a pistol at a vehicle without the intent to kill
them?
Holding: Yes, even without intent, reckless murder was committed when he fired the shots with two people
inside.
Rules applied: Reckless Homicide manifesting extreme indifference to human life must be distinguished from
purposeful or knowing murder. The doctrine of universal malice, depraved heart, reckless homicide
manifesting extreme indifference to human life is intended to embrace those cases where a person has
no deliberate intent or injure any particular individual. (Northington v. State)
One who intentionally fired into an automobile which he knows is occupied and kills is therein guilty of murder (
Hill vs. Commonwealth)
The prosecution must prove conduct which manifests extreme indifference to human life and not just a
particular person.
Reasoning: the crime charged here differs from intentional murder in that it does not result from a specific,
conscious intent to cause the death of any particular person, but from an indifference to or disregard
the risks of the appellants conduct.
The firing of the vehicle created a very great risk of death to anyone inside it, on the hwy., or in the area at the
time of the shooting. He clearly exhibited conduct that manifested extreme indifference to human life to

anyone near the site and disregarded the substantial and unjustifiable risk of death when he chose to
act recklessly.
Result: affirmed
Possible 1st degree?
37.1. Assault by drive-by shooting
A. Assault by drive-by shooting is an assault committed with a firearm when an offender uses a motor vehicle
to facilitate the assault.
B. Whoever commits an assault by drive-by shooting shall be imprisoned for not less than one year nor more
than five years, with or without hard labor, and without benefit of suspension of sentence.
C. As used in this Section and in R.S. 14:30(A)(1) and 30.1(A)(2), the term "drive-by shooting" means the
discharge of a firearm from a motor vehicle on a public street or highway with the intent either to kill, cause
harm to, or frighten another person.
Acts 1993, No. 496, 1.
King-heat of blood, had time to ge
Patterson-heat of blood, U.S. Supreme Court Case
Mclaughtin-heat of blood
Tucker- heat of blood
MERGER-

People v. Hansen 1994 Supreme Court of California

Facts: Defendant, Andrade, and Maycott, planned to purchase $40 of methamphetamine. They just met the
supplier, Michael Enchaves, and drove to his apt. to get it. He parked his car, paid him, and said he
would go wait in his car. Echaves said he will be back shortly. When he failed to return, the def. and his
companions went to his apt. and knocked on the door and windows. Two kids were alone in the apt
and did not respond. Echaves had lived with the kids and their mom, Almenar who left to meet up him .
They acquired a handgun from an acquitance and went back to the apt. Def. approached the apt with
his car lights off and fired into the apt. The two kids were inside the living with the lights on. One child,
Diane, was struck fatally in the head. They recovered five bullets at the scene. It was later determinded
that shell casings and three bullets recovered at the location had been fired from the handgun found
inside the def.s trunk.
Def. was advised his Miranda rights and waived them stating he did fire shots but would have not done
so if he knew there were children inside.
Procedural Hx: jury found the def. guilty of 2nd degree murder, discharging a firearm at an inhabited dwelling.
Def. appealed alleging that the trial court erred in instructing the jury on second-degree felony murder
based upon the underlying felony of discharging a firearm at an inhabited swelling because he latter
offender merged with the resulting homicide within the meaning. Court of Appeal affirmed the conviction
of 2nd degree murder but struck the section 12022.5 firearm-use enhancements.
Issue: Is discharging a firearm at an inhabited swelling a felony inherently dangerous to human life for
purposes of the 2nd degree felony murder doctrine? Also, is the murder doctrine applicable in People v.
Ireland?
Holding: the offense of discharging a fireman at an inhabited swelling house do not merge with a resulting
homicide within the meaning of the Ireland doctrine, and therefore this offense will support a conviction
of second-degree felony murder.

Rule: Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. Second-degree
murder is the unlawful killing of human being with malice, but without the additional elements that could
support a conviction of first-degree murder. Second-degree felony-murder is an unlawful killing that
occurs during the commission or attempted commission of a felony inherently dangerous to human life.
Felony murder rule: under well-settled principles of criminal liability to a person who kills-whether or not he is
engaged in an independent felony at the time- is guilty of murder if he acts with malice aforethought.
The felony-murder rule imputes the requisite malice for a murder conviction to those who commit a
homicide during the perpetration of a felony inherently dangerous to human life.
Commonwealth v. Drum PN 1868
FACTS: Def., William Drum, was charged with murder of David Mohigan.
Procedural Hx: the jury in the Court of Quarter Sessions of Westmoreland Country found him guilty of murder
ISSUE: under PN criminal law, can the def. be charged with murder than was willful, deliberate, and
premeditated?
HOLDING: No, the lack of evidence in this case does not support the def.s charge of murder
RULE: All murder is not of the 1st degree is of the 2nd degree and it includes all unlawful killing under
circumstances of depravity of heart, and a disposition of mind regardless of social duty; it is all of this
without the specific intent to kill
REASONING: based on the lack of evidence in this case, there is no evidence that supports the def.s charge
of 1st degree murder. It is unknown whether the def. committed an unlawful killing under the elements of
murder. Therefore, the def. should not be charged with murder without more information.
Reversed and remanded

PEOPLE V. PEREZ CAL. 1992

FACTS: Def. killed Victoria Mesa at her home; She was found dead, fully clothed, lying on the floor. Autopsy
showed he had bled to death. She was likely vcgfbv beaten with a fist and stabbed around 38 times.
Def. played sports with victims husband about 10 years before the incident and would drive by and
wave at def. about 2x/ week.
PROCEDURAL HX: A jury convicted def. of 1st degree, premeditated, and deliberate murder. Appellate court
reduced def.s conviction to 2nd for insufficient evidence in support of premeditation and deliberation.
Writs granted.
Issues: Under CA crimincal law, was there sufficient evidence to support the verdict of premeditated and
deliberate murder when def. enter victims home, beat, and stabbed her a total of 38 times.
Holdings: yes
Rules: premeditated and deliberated murder: All murder which is perpetrated by any kind of willful, deliberate,
and premeditated killing with express malice aforethought as murder in the first degree.
3 categories of premeditation and deliberation:
1. Planning activity

2. Motive
3. Manner of killing
The court will typically sustain verdicts of 1st degree when there is evidence of all 3 and otherwise
when there is extremely strong evidence
Or when evidence of or evidence in conjunction with either
Reasoning: Evidence of planning activity is shown that the def. did not park his car in the victims
driveway. Motive is reasonable inferred that the def. killing the victim to prevent her from identifying
him. The manner in which def. did the killing is similar to reloading a gun to finish the job whenh he
went to the kitchen drawer to get a new knife to continue stabbing, and eventually killing her after
the initial knife broke
Lastly, after committing the murder, def. did not immediately flee the scene. Instead, he searched
through her dresser drawers , jewelry boxes, and kitchen drawers. These actions are inconsistent
with an individual who acted in a rash and impulsive manner
RESULT: judgment of the court of appeals is reversed

Callins v. Collins 510 u.s. 1141, 114S. Cr. 1127, 127, L. Ed.2d 435 (U.S. 1994)
FACTS: Callins entered a bar armed with a loaded gun. He order 3 patron to empty their pockets. Mr.
Huckleberry failed to turn his belongings quickly enough to Callins who proceeded to shoot him in the neck
causing him to bleed to death.
ISSUE: Callins was convicted for capital murder and two counts of aggravated robbery. Should Mr. Callins
receive the death penalty in the state of TX?
HOLDING: Callins will be executed by the state of TX for being found guilty of murder.
RULE: A capital sentencing scheme must treat each person convicted of a capital offense with degree of
respect due to uniqueness of the individual. 5th Amendemnt provideds that no person shall be held to answer
for a capital..crime..unless on a resentment of indictment of Grand Jury, nor be deprived of life, without
due process of law. This clearly promotes the death penality to be imposed under the constitution and is one
of the cruel and unusual punishments prohibited by the 8th amendment.
REASONING: court affirmed the judgment denying def. habeus corpus or writ to ensure person brought before
court to ensure their detention is not illegal. The sentencing at his state trial did not violate due process. Def.
failed to establish a violation in jury selection process or trial itself to show ineffective assistance of his trial
counsel.
RESULT: Affirmed
When do you have sufficient evidence of premeditation and deliberation to constitute 1st degree murder?
State V. Guebara 236 Kan. 791, 696 P. 2d. 381
Facts: Genny filed for divorce from the def. who also had criminal charges against him for battery
and theft. Def. had a conversation with the judge about his divorce and the emotional effect it had
on him. Def. told him it makes him angry to kill Genny and he could not hold back when she made
him angry. When Genny gave him the papers, he became angry and started shooting her. He said it
was impulsive and later when talking to the police, said he had thought about killing her at an earlier

10

point in time before the incident happened. However, during the cross-examination, the def. alleges
he did not intend to shoot her.
Procedural Hx: During the proceedings at the trial court, the court instructed the jury to look at
charges of 1st degree, 2nd degree, but did not tell them about the possibility of manslaughter?
Issue: Did the trial court err by failing to instruct the jury on the lesser offense of voluntary
manslaughter?
Rule: Elements of voluntary manslaughter: must be evidence of an emotional state constituting heat
of passion and must be sufficient provocation
Holding-No
Reasoning: In order to be within heat of passion, he would have been in such a state of mind that
would case an ordinary man to act on impulse without reflection. Next, the provocation must be
significant enough to cause an ordinary man to lose control of his actions and his reason. Def. had
premeditation.
The basic issue before us is whether there was sufficient evidence pg. 150
The test of suff
PEOPLE V. CHEVALIER
FACTS: Def. charged with first degree murder Def. and victim argued where wife admitted an affair. Victim
repeatedly insulted husband. Def. shot wife, drove body cross state lines, and buried on the side of the road.
Sufficient provocation to kill? The old boys rule, Conflict of Resolution
Procedural Hx: trial court found Chevalier guilty and the appellate court reversed and remanded.
Issue: the issue is whether he def. is guilty of 1st- degree murder or can charged with voluntary manslaughter.
Rule: Criminal Code of 1961 Section 9-2 states the voluntary manslaughter applies to a person who kills
someone without lawful reasoning unless at the time of the crime he is responding to a sudden and
intense passion at the fault of provocation by the person killed.
Holding: The court held the def. could not be tried for voluntary manslaughter.
Reasoning: For crimes to be considered voluntary manslaughter requirements must be met.
Commonwealth v. Troilia 1991 Mass.
Facts: Margaret Wilson, who is a witness, testified that on the night of the murder, her bf Joseph, the def. and
the victim were traveling in her car going different places. Wilson was instructed to drive to a place where the
victims body was found later. Wilson was told to stay in the car while the three men got down to look for drugs.
When Wilson asked where the victim was, the def. replied he had to kill him because the victim made a pass at
him. Another witness, Debra Miele, testified that on the morning the body was discovered, the def. told her I
think I killed someone last night. When asked why the def. allegedly said the victim was a homosexual and
had tried something on him sexually, the def.s sister also testified stating that one week after the murder, the
def. said to her he thought he killed someone but was not sure.
Procedural Hx: the jury convicted the def. on 1st degree murder on the theory of extreme atrocity of cruelty.
The def. appealed from the conviction. Judgment affirmed of the trial courts conviction of 1st-degree murder.

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ISSUE: Had the trial judge erred by failing to instruct the jury on voluntary manslaughter based on the def.
alleging he was reasonable provoked and committed the crime in the heat of passion?
HOLDING: NO jury could find on the basis of the evidence that reasonable provocation exited. On this record,
no voluntary manslaughter instruction was needed
RULE: Voluntary manslaughter is a killing from a sudden transport of passion or heat of blood, upon a
reasonable provocation without malice or upon sudden combat
REASONING: The only evidence of provocation was the def.s alleged statement that the victim made a pass
at him.
STATE V. DUMLAO HAWAII 1986
MANSLAUGHTER INSTRUCTION
Facts: Def. shot and killed his mother-in-law, and shot and injured his brother-in-law. Def.s expert witness
testified that the def. suffered from paranoid personality disorder
Procedural Hx: After a jury trial, def. was convicted of murdering his MI and of reckless endangering in the first
degree of shooting and injuring his BIL. Def. appeals conviction of murder claiming that he was under the
influence of extreme mental or emotional disturbance for which there was a reasonable explanation and that
the jury was not allowed to hear def.s requested manslaughter instruction contending the same.
ISSUES: Did the trial court err is refusing to allow the jury to hear defs instruction on manslaughter?
Holding: Yes, the trial court should have allowed the jury to hear defs instruction.
Rules: Extreme emotional disturbance-the emotional state of an individual who: has no mental disease or
defect and (b) has an extreme emotional rxn to it, as a result of which there is a loss of self-control
The two principle elements of the factor are established:
1. Extreme mental or emotional disturbance
2. An objective/subjective test of the reasonableness of the explanation of the disturbance
Reasoning: It was shown at trial (by def.s expert witness) that def. suffered from an emotional and mental
disorder that caused extreme paranoia and irrational jealously concerning his wife. The point of the
extreme or emotional disturbance defense is provide a basis for mitigation that differs from a hiding of
mental defect or disease precluding criminal responsibility.
Result: Reversed. Remanded for a new trial.

Consciously Disregards a Substantial Risk

Murray v. State Wyoming 1993
FACTS: Def. Murray and victim were coworkers who got into an argument after work at a bar. Murray left the
bar. Victim was driving to def.s home to get his work clothes. Def. begain instructing victim to leave his
property while firing a gun. Victim turns to walk away and is stuck by a ricocheting bullet in the thigh and
buttocks. As a result of massive blood loss, vicitim is unable to be revived.

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PROCEDURAL: The def. was originally charged with second-degree murder, but charge was reduced to
involuntary manslaughter and def. was found guilty. Def. appealed citing insufficient evidence for
manslaughter.
ISSUE: Is there enough evidence to reduce the charge from involuntary manslaughter to criminally negligent
homicide.
HOLDING: Supreme Court concludes that there is sufficient proof that the def. could be held at involuntary
manslaughter.
RULE: Court finds that the def. did act with conscious disregard and recklessly which is the minimal
requirements for mens rea for recklessness for manslaughter and not criminal negligence for negligent
homicide.
REASONING: Because the def. was ex-military, considered a sharp-shooter, and an avid hunter, his
familiarity with guns should had been him realize the risk of and the amount of danger involved in aiming a gun
in the direction of another person. Also in Wyoming where rocks are plentiful, it can be reasonable to infer that
shooting at someones feet creates a substantial and unjustifiable risk of injury resulting from a ricocheting
bullet. According to the involuntary manslaughter statue, unlawfully kills any human being without malice,
expressed or implied, involuntary, but recklessly. When a person acts recklessly, they consciously disregard
the risk of harm.
Citation: People v. Rodriguez, 186 Cal. App. 2d. 433, 8 Cal. Rptr. 863.
Facts: Defendant left children home unsupervised. The house caught a fire and the youngest of her four
children died from the burns sustained in the fire.
Procedure Posture: Defendant was accused of manslaughter. In a judge (bench) trial defendant was found
guilty of involuntary manslaughter. A new trial was denied. She appeals from the judgment and the order
denying a new trial.
Issue: Was there any evidence of criminal intent or criminal negligence when the defendant left her young
children home unsupervised to convict the defendant of involuntary manslaughter?
Rule: Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: . . . 2.
Involuntaryin the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act
which might produce death, in an unlawful manner, or without due caution and circumspection. . . .
Holding: No, there was not sufficient evidence of criminal intent or criminal negligence when the defendant left
her young children home unsupervised to convict the defendant of involuntary manslaughter.
Reasoning: The defendant leaving her children at home was negligent; however, the childs death was not
predicated on the defendants actions or failure to act. The childs death was a result of a fire which the
defendant did not or could not have known would occur. It was not the defendants intent for her child to die
from a fire when she left him unattended. The occurrence of the fire was out of her control. The evidence was
not weighted appropriately to justify the elements being met regarding involuntary manslaughter conviction.
Result: The judgment and order denying a new trial reversed.

NEGLIGENT HOMICIDE
Citation: State v. Bier, 181 Mont. 27, 591 P. 2d 1115 (Mont 1979)
Facts: Defendant, Richard Brier, and his wife, the victim, was drinking earlier at an event. The coupled
returned home and an argument ensued. During the argument the victim, whom as intoxicated, refused to
allow the defendant to leave the home. The defendant removed a gun from the closet, pulled the gun from its

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holster, cocked it and cast it on the bed. The victim picked up the gun and pointed it to her head. The
defendant told the victim the gun was loaded and attempted to move the gun. The gun discharged. The
defendant was convicted of negligent homicide.
Procedural Posture: Defendant was convicted of negligent homicide. Defendant appeals.
Issue: Should the defendant be held liable and/or convicted of negligent homicide for the death of the victim
when the victims actions were the ultimate cause of her death?
Rule: Negligence is defined as follows: . . . [A] person acts negligently with respect to a result or to a
circumstance described by a statute defining an offense when he consciously disregards a risk that the result
will occur or that the circumstance exists or if he disregards a risk of which he should be aware that the result
will occur or that the circumstance exists. The risk must be of such a nature and degree that to disregard it
involves a gross deviation from the standard of conduct that a reasonable person would observe in the actors
situation. Gross deviation means a deviation that is considerably greater than lack of ordinary care. Relevant
terms such as negligent and with negligence have the same meaning.
Holding: Yes, the defendant should be held liable and convicted of negligent homicide for the death of the
victim when the victims actions were the ultimate cause of her death.
Reasoning: The defendant was aware that the victim was intoxicated. Being that she was intoxicated she was
not capable of making reasonable rational decisions. Therefore, to basically give a loaded gun to an
intoxicated individual is negligent and he should have responded differently to the situation.
Result: Conviction affirmed
Citation: People v. Watkins, 196 Colo. 377, 586 P. 2d 43. (Colo. 1978)
Facts: Defendants brother was engaged an altercation at the club. Victims pointed and identified the
defendants brother as the man. The defendants brother and the two men the brother was in an earlier
altercation with went outside and begin to play craps. An altercation again ensued. Victim Buckner pulled out a
knife and, according to defendant, Victim McDonald had a gun. Defendant shot Buckner and McDonald and
both succumbed to their injuries.
Procedural Posture: Defendant Henry Walter was convicted of second-degree murder and of first-degree
murder. Defendant appeals.
Issue: Did the trial court erred when refusing to give instructions to the jury relating to lesser included offenses
under the circumstances when the defendant shot and killed two people during an altercation when he feared
for his life?
Rule: Criminal negligent homicide should be
Holding: Yes, the trial court erred when refusing to give instructions to the jury relating to lesser included
offenses under the circumstances when the defendant shot and killed two people during an altercation when
he feared for his life.
Reasoning: Regardless of how improbable or irrational the threat to the defendant life and subsequent
justification to refuse to give jury instructions regarding criminal negligent was in error. It is the jury to decide
whether all the elements are met for criminal negligent and convict accordingly.
Result: The judgment is reversed and the cause remanded to the district court for a new trial.
HARRIS V. STATE Georgia Court of Appeals
FACTS: The def. W.J. Harris was in an argument with Pittman, the victim , over a jug that the victim left at the
Pittmans business. Harris called Pittman a got-damn liar, and Pittman hit Harris on the head with a stick and

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knocked Harris to the ground. Pittman advanced toward the def. using a small wagon or goat-cart as a
weapon. The def. shot Haris three times: once in the thigh, above the navel, and in the shoulder.
PROCEDURAL HX: trial court convicted the def. of voluntary manslaughter and received a fixed punishment of
no less than 15 yrs. Def. appealed
ISSUE: Under Georgia criminal law, is an individual who shoots and kills a person advancing toward him x
times but did not have the intent to kill him acting in self-defense?
HOLDING: Yes, An individual who shot and killed a person advancing toward him three times but did not have
the intent to kill the victim acting IS acting in self-defense.
RULES: Manslaughter is the unjustifiable, inexcusable, and intentional killing of a human being without
deliberation, premeditation or malice.
REASONING: Even though Pittman provoked Harris actions, the court found that Harris was guilty of voluntary
manslaughter because it doesnt excuse the crime of the murder. Harris shot Pittman 3 times after
Pittman attacked him. The act was not involuntary.
RESULT: Affirmed
Assault: is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of
receiving a battery.
Battery: Battery is the intentional use of force or violence upon the person of another; or the intentional
administration of a poison or other noxious liquid or substance to another.
State v. Jimerson
FACTS: On December 22, 1978, Jimersons car spun out of control near the off duty police officers. The
officers suggested that he drive more carefully. The def. responded with names directed towards the polce.
The def. then attempted to get out of his car to fight with the police officer. The cop blocked his attempt, then,
the def. pointed to his car and accelerated towards the cop. Shots were fired toward the car by the cops. After
this incident, all parties went home, but later the cops reported the event and Jimerson was arrested and
charged with first degree assault.
ISSUE: Did the court err in not allowing the lesser included offense of simple assault?
RULE: In State v. Workman, First, each of the elements are of the lesser offense must be a necessary
element of the offense charged. Second, the evidence must support an inference that the lesser crime was
committed.
REASONING: The first condition of the elements to prove if the def. is entitled to an instruction on a lesser
included offense si met because simple assault is part of first degree assault. The second condition of the
element is not proven bc the evidence is lacking. The def.s testimony does not show sufficient evidence of a
lesser charge. For simple assault to be valid, a dangerous weapon would not have been used. In this case, the
car was the dangerous weapon.
HOLDING- no error from the court.
Reversed and remanded.
38. Simple assault
Simple assault is an assault committed without a dangerous weapon.
Whoever commits a simple assault shall be fined not more than two hundred dollars, or imprisoned for not
more than ninety days, or both.

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UNITED STATES V. BELL U.S. 7TH Cir. App. 1974

FACT: Def. was hospitalized inpatient for ETOH and dx addiction. While there, he attempted to rape a female
geriatric pt who suffered from a mental disease which made her unable to comprehend what was going on.
PROCEDURAL HX: Def. was convicted of assault and intent to commit rape and appeals asserting the
defense that because the victim was incapable of forming a reasonable apprehension of bodily harm; there
was no assault.
ISSUE: Is it necessary to the offense of assault that the victim have a reasonable apprehension of bodily
harm?
HOLDING: No,
RULE: In United States v. Rizzo, there are 2 concepts of assault in criminal law:
1. An attempt to commit a battery
2. An act putting another in reasonable apprehension of bodily harm
In Rizzo, the court said, there may be an attempt to commit battery and hence an assault, under
circumstances where the intended victim is unaware of danger. Apprehension on the of part of the victim is
not an essential element of that type of assault.
When a federal criminal statue uses a common law term without defining it, the term is given its cmoon law
meaningan attempted battery is an assault.
REASONING: Since an attempted battery is an assault, it is irrelevant that the victim is incapable of
forming a reasonable apprehension.
RESULT: Affirmed.
Lesser included offenses the assault might have occurred during the other crime,
Jimerson is entitled to a jury instruction on a lesser included offense if any evidence was produced which
would justify a reasonable person in concluding that the lesser included offense had been committed. (the
facts suggest another possible charge but a lesser charge, the facts suggest the existence of a charge that
is less serious that he is being charged with..exposes him to less charge) simple assault- 6 month time
span; if the facts suggest that the def. is included in the lesser included offense, the jury has the right to
give that instruction,
UNITED STATES V. JACOBS 7TH CIR.APPEAL 1980
FACTS: Def., Jacobs, planned to evict the victim, Earl Bodah, and his family. Def. blocked the driveway
with his car while the victim was away. Upon his return, he simply drove around the blockade and reached
for the door. Victim did not see def. until he realized that he had been shot or that def. had a gun pointed to
him. Def. followed his victim inside the house, struck victim, and others with the gun.
PROCEDUREAL HX: Def. was arrested, charged with assault resulting in GBH. District court convicted def.
of assault.
ISSUE: Did the def. commit an assault when he shot the victim even though the victim did not know the
def. was pointing a gun at him and was about to shoot?

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HOLDING: Yes
RULE: An assault resulting in serious bodily injury seems to indicate that the assault must come before the
bodily injury. When an actual battery is committed, it includes an assault.
REASONING: In the present case, the actual battery was clearly proved, and such proof will support a
conviction of the included offense of assault.
RESULT: Affirmed
STATE V. CAPWELL 1981 Oregon
FACTS: In 1989, Def., Cawell, stood in front of the victims house holding a gas can at 0300. The victim,
Tenderalla, a cop, went outside holding his nightstick to investigate. The def. swung the gas can at the cop
and missed. The victim told the def. that he was a cop and after seeing a budge under the def.s coat, he
tried to apt him down. The def. swung the gas can at the victim and hit the victim in the arm. Placed
Capwell under arrest and was struck by the gas can again and kicked. The def. claimed the blows hurt but
no bruises; he did not see a doctor. The def. was convicted of assault in the 4th degree.
Pg. 205 Whether after viewing..
There is no evidence
Substantial that is or exists as a substance; having a real existence, subsisting by itself; of ample or
considerable amount, quanitity or dimensions
Under, LA Second degree battery is a battery when the offender intentionally inflicts serious bodily injury
PROCEDURAL HX: assault in the 4th degree and def. appealed his conviction claiming insufficient
evidence
ISSUE: Under Oregon law, is there sufficient evidence to convict the def of assault in the 4th degree?
RULE: Assault to the 4th degree is committed when a person intentionally, knowingly or recklessly causes
physical injury to another, and physical injury is the impairment of physical condition or substantial pain.
HOLDING: No, there isnt sufficient evidence to convict the def. of assault.
REASONING: The court found that the def. did not inflict substantial pain upon the victim, no bruises, no
evidence of substantial pain upon the victim. The victim even said it hurt but did not seek medical
assistance. Substantial is having a considerable amount of quanity of something. Therefore, the def.
cannot be guilty of assault to the 4th degree because he did not cause the op physical injury or substantial
pain; Could be guilty of attempt to commit assault
REVSRED AND REMANDED for entry of a new judgment

PEOPLE V. SANTIAGO N.Y. 2003

FACTS: Def. Santiago and complainant, Angela R. have a long hx of domestic violence between them.
Usually, def. will file a claim of assault and attempt to get def. off the hook by retracting her previous
statements and lying under oath.
Restraining order-1st degree murder if he had killed her

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Domestic violence: if someone is beating you physically, if you decided that you want to be
beating, do you accept it as conditions of your relationship, do you have a right to be engaged in a
violent relationship? Yes.
BATTERED WOMAN SYNDROME. : the highly variable symptom complex of physical and
psychological injuries exhibited by a woman repeatedly abused especially physically by her mate
called also battered wife syndrome, battered women's syndrome.
Syndrome- continuous and voluntary control
PROCEDURAL HX: Def. was charged with Aggravated Criminal Contempt and two counts of criminal
contempt in the 1st degree. People move for order permitting them to use complainants grand jury
testimony and out of court statements at trial.
ISSUE: Under NY crim law, is there a difference between the dynamics of domestic violence and other
types of assault cases adjudicated by the courts that would affect the way that evidence is introduced?
HOLDING: Yes, domestic violence is different than the average assault in that Grand Jury testimony and
out of court statements of the claimants may be used against the def. even if the claimant refuses to testify
and retracts all previous statements.
RULE: Grand Jury testimony and out of court statements of an unavailable witness are inadmissible as
evidence except when the state can prove by clear and convincing evidence, that the def. procured the
witnesss unavailability through violence, threats, or chicanery.
REASONING: Many times, victims of domestic violence, do not have the will to follow through. They lack
self0esteem and the strength to seek retribution or permanent safety from their attacker. Therefore, many
repeat victims initially file a domestic violence complaint. This may be a result of Battered Womans
Syndrome.

COMMONWEALTH V. MASTROS MASS. 1995

FACTS: Def. was convicted under the stalking-statue for repeatedly harassing the victim. The victim
received over 40 letters in a 10-month period that had sexual and vulgar language, threats of violence,
dangerous friends, and the signature stalker as the return address. Def. also sent a signed statement to
the victims employer and police dep. Alleging that the victim had used drugs with the def. The victim
changed her address and the letters till came. Def. moved for a motion requiring a find of not guilty
because the Commonwealths evidence was insufficient.
PROCEDURAL HX: Def was convicted of the stalking statue by a jury in the district court. He then filed for
a motion for a required finding of not guilty, which was denied. Def. argued that his motion was improperly
denied
ISSUE: Did the Commonwealths evidence insufficiently prove that def. made a threat with the intent to
place the victim in imminent fear of death or seriously bodily injury?
HOLDING: Yes, Supreme JDC of Mass.affirms his conviction
RULE: The stalking staute conviction must prove that the def. made a threat with intent to place the vicitm
in imminent fear of death or bodily harm

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II.

III.

Assault
A. Attempt with unlawful force to inflict bodily injury upon another
B. apparent present ability give effect to the attempt if not prevented.
i. Completed battery is an assault
ii. Victim apprehension is not required
Rape
A. Common law rape
i. Unlawful carnal knowledge of a woman without consent
1. Slightest penetration is sufficient
Louisiana: Rape is committed when the anal, oral, or vaginal sexual intercourse is deemed be
without the lawful consent of victim
a. Aggravated rape/1st degree
o Committed on a person over 65 years of age or older
b. When the victim resists the act to the upmost, but whose resistance is
overcome by force
c. Prevented from resisting the act by threats of great and immediate bodily
harm, accompanied by apparent power of execution
d. When the victim is prevented from resisting the act because the offender is
armed with a dangerous weapon.
e. Under 13 years of age , lack of knowledge of the victim's age shall not be a
defense.
f. 2 or more participants
g. Suffers from a physical or mental infirmity preventing such resistance
Forcible Rape /2nd degree

Prevented from resisting the act by force or threats of physical violence under
circumstances where the victim reasonable believes that such resistance
would not prevent the rape (they can think that you have a gun when you really
dont)
Incapable of resisting or of understanding the nature of the act by reason of
stupor or abnormal condition of mind produced by a narcotic or anesthetic
agent or other controlled dangerous substance administered by the offender
and knowledge of the victim
Third degree
Incapable of resisting or of understanding the nature of the act by reason of
stupor or abnormal condition of mind produced by an intoxicating agent or
any cause and the offender knew or should of know of the victim's incapacity.
Unsoundness of the mind, temporarily or permanently
When the female victim submits under the belief that the person committing the
act is her husband and such belief is intentionally induced by an artifice,
pretense, or concealment practiced by the offender.
Without consent of the victim
B. Statutory Rape
i. Age limit
ii. Consent is immaterial

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OFFENSES AGAINST THE HABITATION

I.

Common Law Burglary

A. Breaking and entering the dwelling of another in the nighttime with intent to commit a crime
therein
i. Dwelling
1. Requires occupancy
a. No occupants = no dwelling
ii. Breaking
1. Actual breaking
a. Slightest application of force is enough
2. Constructive
a. Threat of violence
b. Conspiracy
c. Fraud
iii. In the nighttime
1. Historically, when one could not see anothers face
2. Usually defined ex-time of sunset to sunrise (6:00 pm - 6:00 am)
iv. Intent to commit a crime therein
1. Must be at the time of breaking
2. Usually, the crime is larceny BUT
3. All crimes sufficient
a. Arson
i. Malicious burning of the dwelling house of another
v. Actual
vi. Malicious
vii. Dwelling of another
viii. Habitation of another
1. Extended to include ones own home
a. Insurance fraud

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