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The Queen v. Dudley and Stephens, 14 Q.B. D. 273 (1884)
Facts:  D and S kill a boy while lost at sea in an open boat after 20 days.  Though they had initially thought of drawing lots, they eventually decided to kill the boy between the two of them.  One man (Brooks) dissented and boy was not consulted and did not consent to be killed.   Question:    Is necessity a defense to murder?   Reasoning:  There can be no absolute necessity preserve one's life when there are clear instance when it is one's moral duty to sacrifice oneself for others (Soldiers, Captains for crew, etc.).  Court looks to Christ's sacrifice as well.    This sort of sacraficing another type necessity creates a slippery slope that cannot be ignored and may result in great inequities..ie. why kill the boy and not one of the men?  Who makes those choices?  Strength does not justify misconduct toward another.   Holding:  A man is guilty of murder even if he believes and has reasonable grounds to believe that the killing of an innocent is the only way to preserve his life.
State v. Stark, 66 Wash. App. 423 (1992)
Facts:  HIV positive individually exposed partners to HIV by not using  protection.  Knew that he could transmit HIV and (during later relationships) kept his condition a secret from his partners.   Actively told neighbors that he didn't care about transmitting the disease.   Question:    Should Stark be subject to  criminal charges for his actions?   Reasoning:    Holding: Yes, knowing transmission of an STD is a 2nd degree misdemeanor per FL law.  Statute providing for a non-criminal enforcement mechanism DOES NOT preclude criminal charges.
Johnson v. State, 578 So.2d 419 (1991)
 Facts:  Woman took cocaine directly prior to birth of child.  She was convicted of passing drugs to a minor child via her umbilical cord after the child was born.   Question:    Is the ingestion of a controlled substance by a mother, who knows the substance will pass to her child after birth, a violation of Florida law against providing controlled substances to minors?   Reasoning:  Logically, in FL a fetus becomes a child at birth, a mother who takes cocaine prior/during that birth should know that the substance will pass to the child, ergo, the mother has knowingly provided a controlled substance to a minor in contravention of law.   Holding:   Yes, this is a violation of FL law.   Concurrence:   Question of Mens Rea, BUT, certainty of delivery is assured via blood, and placing cocaine into the blood flow is certainly voluntary (wanting it to go to child notwithstanding as an issue)   Legal fiction that she wouldn’t have know it would got a "person" if she had the children prematurely (ie. she didn't know it was soon to be born) cannot apply because she used cocain WHILE in labor itself.    Public policy reasons may exist for an exemption, but the legislature has the ability to implement those exemptions within the statute if it so chooses.   Dissent:  Judge Sharp concludes that it was not the INTENT of the legislature to apply the statute in this type of case.   Claim that the "transfer" could not be categorically proven medically (despite testimony to the contrary).   "legislative intent the polestar  by which the courts must be guided."
  • A bill proposed in 1987 that would have criminalized having a drug dependent baby, but it was amended to remove potential for criminal investigation solely due to the dependency of the child.
    • (why would we do that, it seems like a clear indication of illegal conduct by the parent?)
  Diffusion of blood an "involuntary act" and this criminal statute should be strictly (not loosely) construed.
Criminal Sentencing Determined by Four (4) institutions:
  1. The Legislature
  2. The Prosecutor
  3. The Judge
  4. The Parole Board
United States v. Bergman, 416 F. Supp. 496 (S.D.N.Y. 1976)
 Facts:  B is sentenced based on a guilty plee to two of 11 counts against him.  B is a wealthy man who has been a philanthropist and has many excellent recommendations.  He admits having wilfully defrauded the government to pad payments to his nursing homes via medicaid.    Question:   Should he be sent to prison, what's the point?   Reasoning:  1) argues that there is no rehabilitative aspect to prison - it is punishment.  Two sentencing considerations demand a prison sentence:  i. General Deterrence - reminder to others that the law is real; ii. A lesser sentence would "depreciate the seriousness of the defendant's crime." There is no mitigation to the sentence, crime was blatant, and Bergman has no possible excuse - must be accountable.
  • Public humiliation itself may be punishment, but this is not a retributive sentence, so it has no bearing.
  Holding:  Sentenced to prison and restitution of $25 million
Four General Purposes to Sentencing :
  • Reflects seriousness of offense, promotes respect for law, and provides "just punishment"
  • Affords adequate deterence
  • Protects public from the criminal and future conduct
  • Provides D with needed education or vocational training, medical care, or treatment.
Solem v. Helm, 463 U.S. 277 (1983)
 Facts:  Helm proscribed a life sentence by North Dakota mandatory sentencing requirements following his 7th non-violent felony.  (in this case writing a fake check for $100)  Subject to this sentence due to ND's recidivist statute, which dramatically increased penalties (after three times).   Deterence v. Retribution
  • Helm is indicative of this issue, ie. a minor crime, but to be deterrent, the sentence exceeds the necessary retribution
People v. Newton, 340 N.Y.S.2d 77 (Crim. Ct. 1973) p. 143 - Involuntary Acts
Facts: Defendant is charged with carrying a firearm without a permit in NY after his flight is diverted to JFK airport after he was apparently unruly. Holding: Court holds that he has not voluntarily done so because he had no control over the pilot's decision to land in NY, when the flight was scheduled to fly between the Bahamas and Luxembourg.
Jones v. United States, 308 F.2d 307 (D.C. Cir. 1962) p. 147 - Duty of Care/Malnourished Children
Jones poor care of children results in one's death
Question: Did she have a duty to act? Four reasons why one might have a duty where omission would constitute a crime:
 1) State imposed duty (law or regulation)
2) Certain types of relationships - (Parents)
3) Assumed a contractual duty of care - (Doctor, Childcare professionals)
4) Voluntarily assumed care & in so doing prevented others from providing care She likely had a duty to act in conformity with reason #3 or #4 Other issue: Division of Labor between Appellate Court and Trial Court  - Trial Courts make factual determinations --> trial judges instruct the jury as to WHAT they need to make findings upon (ie. the key issues)
 - In Jones, the trial court did not find whether Jones did nor did not have a duty of care
 - Without a finding of duty to care, by law, impossible to find a failure to care
Appellate makes finding of Law and conduct of trial/judges - de novo review of law but discretionary (clearly erroneous) review of factual findings.
"Not in the business of fact finding" so it will remand to a trial court for determination of any facts that it may believe have not been properly determined.
In most cases, a new case and a new trial (this is NOT double jeopardy)
A second option DOES exist - could have imposed a duty to act on FUTURE defendants ie. creating a future rule, but cannot impose retroactively.
Duty to Rescue: Does NOT exist as a general matter.
Should it exist?
No, how would you control it?  How would you remove potential for liability, or mistake, etc?  Who will compensate the savior for their injury?  Anger from third parties?
Does the law intend to enforce morality/social mores?
Is this remotely efficient or even practicable? 
Should we be creating a law to MAKE one person responsible for the actions or misconduct of another?
Won't we be compelling people to act when they're NOT confident regarding their capability to do so?
Specific Intent vs. General Intent Crimes
  • Determination central to common law
  • Specific Intent - D intended to commit the specified crime (ie. 1st Degree Murder) or actual result
    • Must have ACTUAL knowledge of a result
  • General Intent - No need to show that D intended to bring about a specific result/crime, only that they DID cause the result and "should have known" but didn't (ie. negligent homicide).
    • Doesn't HAVE to know will happen, just SHOULD have known
Model Penal Code Approach
  • Attempts to create a four (4) part division:
    • Did they act
    • Knowingly
    • Recklessly
    • Negligently
State v. Perry (Minn. 1947) p. 176
 Facts:  D is accused of indicent exposure while a seminary student in St. Paul.  D is a 23 year old veteran of four campaigns during WWII.  Took a shower in the afternoon  and was seen by female on the campus (blinds were up)   Issue:  Statute COULD be construed as strict liability because it DOES NOT require willful conduct, but the Court chooses to apply past precedent that misconduct must be committed with "deliberate intent of being indecent or lewd."   Why: Mens Rea is intended to ensure blameworthiness of the indicted individual, ie. that the person actually needs to be punished, and their punishment will be a deterrent to others.
  • Requirement of a culpable state of mind is intended to protect people from label of criminality for inadvertent or unintended acts for which there is no moral blame to be applied
People v. Wendt (Ill. 1989)  

Facts: D failed to pay income tax because he believed that he was not subject to income tax because the 16th Amendment was improperly passed.   Arguments: W argues that he had a bona fide misunderstanding of the law which would negate willfulness, ie. that he didn't know the law's requirements to do so.    Holding:  Court responds that "willful" as defined in the statute is simple analogous to "knowingly" and that here, it is enough that he did "know" that his conduct would result in his taxes not being filed.
  Gordon v. State (Ala., 1875) - Mistake of Fact
- Individual who thought he was 21 years of age, not liable for voting while underage because he was 20 years old (his grandparents told him the wrong year - likely a former slave without records - Good faith mistake of fact can be a defense (but no mistake as to law itself)
United States v. Williams, 332 F. Supp. 1 (D. Md. 1971) - Intoxication
  • Williams steals from a bank and claims he did not intend to but was so intoxicated that he had no recollection of doing so
  • Two counts:
    • Taking by intimidation:  a general intend crime, no need to intend to commit a crime, just to take something by intimidation -  voluntary intoxication does not constitute.
    • Common-law crime of theft: requires specific intent to deprive a lawful owner of property permanently
      • May allow use of voluntary intoxication defense (specific intent) - but here the Court found that he did have intent (not too drunk)
Vicarious and Strict Liability
 Strict Liability:  Liable even though not negligent in his/her conduct or had no intent (mens rea) to commit the act, no mens rea defense available.   Vicarious Liability: Liable even though not actually involved in the transaction, but liable by statute (via regulatory means).
Commonwealth v. Koczwara, 397 Pa. 575 (1959)
  • K is a bar owner who is potentially liable for violation of the liquor code even though he did not make the sale himself.  (potential period in jail)
  • A strict liability claim, so no intent necessary (nor a Mens Rea defense)
    • Was this a culpable act, allowing for an Actus Reus defense, ie. this was not a voluntary act?  But wasn't hiring/keeping the employee voluntary?
  • Why do we allow for vicarious liability? 
    • Benefits of regulatory offenses impinging on the individual charged
  • Court refuses to imprison an individual for a regulatory offense
Commonwealth v. Carrol, 412 Pa. 525 (1963)
  • Convicted of 1st Degree Murder for killing his wife after an oral argument (she nagged him, forced him to leave Army, beat his kids)
  • Sought lower level of punishment (from 1st to 3rd degree) because he argues that the murder was not "premeditated"
  • In PA, 1st Degree murder under Gooslin  includes "all murder perpetrated by poison or lying in wait, or by any other kind of wilful, deliberate, [and] premeditated killing…[or description of Felon-Murder]."
    • Attempts to suggest that oft repeated "no time is too short for a wicked man to frame in his mind his scheme of murder" suggests the need for an additional amount of time for premeditation of a crime by a "good" man like Mr. Carrol.
      • Court makes clear that this has NO merit (ie. fairly clear here that "wicked man" merely aludes to anyone who commits a murder).
  • This is one major view of pre-meditation, that it "may be had in an instance."
Commonwealth v. Carroll,  412 Pa. 525 (1963) p. 266
  Facts:  D kills his wife after a verbal fight (intensified by her abuse of their children and forcing him to leave the Army) using a loaded pistol he had kept on the window sill for her use.  He waited 5 minutes, pulled it down, and shot her in the back of the head.   Question:   Does no the evidence conviction of no higher than 2nd degree murder (trial judge had convicted of 1st degree).   Holding:  Appelate court finds that DID constitute 1st degree murder because it was deliberate, wilful, and pre-meditated (thought of it for 5 minutes)   Reasoning:   Psychiatrists opinion of D's state of mind bears little weight when refuted by the facts.  D's own statement indicates his state of mind at the time of the incident, ie. he remembered the gun, took it down, and deliberately fired two shots into the the head of his sleeping wife."
People v. Anderson, 703 Cal. Rptr. 550, (1968) p. 270
  Facts:  D found guilty of first degree murder for stabbing/hacking death of Victoria Hammond, the 10 year old daughter of his live-in girlfriend.    No evidence of the D's mental state prior to killing, but afterward told girl's mother and brother various stories about the blood and tried to conceal the girl's body.   Question:   Is this 1st Degree Murder?   Holding:   Court holds that there is no pre-existing reflection or forethought shown so as to allow for the conviction of 1st degree murder.     Reasoning:   No evidence, other than suggestion of prior secual molestation, to indicate that this act was pre-meditated.  Court suggests  that "hacking" with a machette is suggestive of a crime of passion/moment without  premeditation.  Cannot construe effort to hide act as premeditation, could as easily be fear.   Dissent: Would have considered this felony-murder based on evidence of the sexual motivation (naming it attempted rape or molestation).   Felony murder = 1st degree.
State v. Thornton, 730 S.W. 2d 309 (Tenn. 1987) - Manslaughter
Facts: 
  • T convicted of murdering his wife's lover after shooting him upon finding them having relations in his home. 
  • T, a law student, had been separated from his wife for six weeks, but saw his child daily and they were in marriage counseling
  • T had never met her Lover (McConkey) and knew only that his wife had indicated her desire to "date" other people, both had agreed with counselor not to have sex with other people
  • T was partially disabled, with scoliosis, and small (5"5, 130).  McConkey was an athlete (5'10", 183)
  • McConkey knew they were married (but seperated)
  • T went to house to reconcile, but saw McConkey, then left after letting air out of Mc's tire, to go get a camera and pistol  (had to stop at store to get film for camera)
  • Heard/Saw wife and Mc having sex, burst in to take pictures, but then thought Mc was attacking him so shot him in the hip (Mc subsequently died of infection of his wound)
  • Jury found that he was neither insane, nor acting in self defense.
  Question:   Did T's acts constitute 1st Degree Murder?   Holding:   "does not warrant a conviction of homicide greater than Manslaughter"   Reasoning:   well settled in Tennessee that unlawful sexual intercourse will arouse ungovernable passion and that killing under those conditions constitutes voluntary manslaughter.
  • Previous case had allowed for after over an hour of knowledge
  Dissent:  Agrees with reduced sentence, but "in order to reduce from second degree murder to voluntary manslaughter, must show that the D acted upon the sudden heat of passion, without malice."
  • Dissent argues that T's threat to Mc (going to "shoot him in the ass") and his letting air out of Mc's tire so as to catch him in some misconduct.
State v. Turgeon,  165 Vt. 28 (1996)
Facts:
  • T "tormented" by wife about protective order keeping him from his son.
  • T drives erratically and is pursued by police
  • T shoots police during chase.
  • Question:   Can he use unsettled mind defense?
Holding:  No, because the 3rd party (police) were not part of his altercation with his wife, his reaction was not a reasonable response to the domestic situation causing his behavior. Reasoning:   Dissent: None
Schick v. State, (Ind. Ct. Ap. 1991)
 Facts:
  • S (a 17 year old) is picked up while hitchiking by Stephen Lamie
  • Lamie makes homosexual advances (oral and touches S's penis)
  • S responded by kneeing Lamie in the stomach and then stomping him to death
  Question:   Is a homosexual advance a legal provaction to limit murder charges to manslaughter?   Holding:  Jury convicts of manslaughter (apparently accepting the defense) Reasoning:   Dissent: None but:
  • Alternate holdings that homosexual advance do not constitute sufficient provocation.
  • Debate about whether this defense constitutes "judicial affirmation of homophobia"
People v. Oropeza,  151 Cal. App. 4th 73, (2007) p. 291  (Road Rage)  

Facts:  O appeals 1st degree murder conviction
  • Contends that was provoked by being intentionally cut off by another driver
  • Question:   Is this enough?
Holding:  Court denies appeal, holds that though he might have been upset, being cutoff would not lead a reasonable person to  "engage in [a] alcohol-infused, ego-inspired act of mutual road rage" of the type  that resulted in him shooting the other driver. Reasoning:   . Dissent: None
State v. Gounagias, 88 Wash. 304 (1915) - cooled passion
  • D was sodimized by victim, who subsequently told others about it, but D waited two weeks and then shot him
  • Court held that the time he waited meant that there was no "sudden anger" (nothin involuntary) but rather "brooding thought, resulting in the design to kill."
People v. Berry, 18 Cal. 3d 509 (1976)

  • B's wife of two months torments him by saying she is going sleep with another man after "exciting" him
  • B waits at her apartment overnight and then strangles her when she returns and starts yelling at him
  • Court holds that his 20 hours of cooling off time (at her apartment) was insufficient to deny him a reduction to voluntary manslaughter due to her "long course of provacatory conduct."
State v. Furlough (Tenn. 1993)

  • Court rejects woman's voluntary manslaughter defense because she waited 3 hours to shoot her husband after finding him about to (but not) sodomizing baby (diaper age child)  --- this is crazy
  • But See State v. Felton (WI 1983) (reversing woman's conviction after finding that attorney failed in adequate representation by not brining up husband's abuse within two hours of the murder)
People v. Nesler (1994)
  • 1988 Daniel Driver molests N's child and 3 other boys (he had previously been convicted of molestation in 1983)
  • 1992, Nesler is upset by son's continued agitation (vomiting) and talk that Driver was "going to walk"
  • She retrieves a gun (detais unclear, in her car) and shoots him 5 times
  • Jury sentences her to 10 years for involuntary manslaughter, while judges calls it an "execution."
  • Nesler's trial overturned due to jury misconduct (related to her insanity defense) and she eventually serves 4 years of a 7 year sentence.
People v. Williams (Ill. 1991)

  • Woman comes home and finds her husband naked with two women, but she does nothing and begins to cook
  • Husband slaps her while cooking and she stabs him
  • Court upholds murder conviction, reasoning that jury could have reasonable decided that there was sufficient "cooling off period" for her not to be incited to manslaughter.
State v. Aaron McKinney (Wy. 1998) p. 299
 
  • McKinney & Russel Henderson kill Matthew Shepard because he's gay
  • McKinney goes to trial, claiming that Shepard's sexual advances reminded him of homosexual abuse he experienced as a child
  • Trial Judge refused to admit evidence of history of abuse
    • Is this because, unlike in Felton, here the abuse has nothing to do with Shepard himself?
Freddo v. State, 127 Tenn. 376 (1912) p. 300
 
  • 19 year old orphan kills man for calling him a "son of a bitch"
  • Claims he has a special sensitivity to disrespect towards women
  • Court refuses to consider Freddo's "sensitivity" and concludes that a reasonable person would not have been provoked
People v. Wu, 235 Cal. App. 3d 614 (1991)
 
  • Chinese woman kills her son and attempts to commit suicide after son told her that his father (estranged from her) did not love him and mistreated him
  • Defense claims that chinese cultural norms required her to kill him because she could not just leave him alone after hearing about his mistreatment
  • Appeals court held that trial court erred in NOT instructing jury that they could take her cultural background into account, reasoning that it was relevent to te "source of her emotional distress" and how her son's statement could have arrisen to "sufficient provokaction."
    • But, how then do you determine what is reasonable, if we consider something as amorphous as culture?
    • Model Penal code might eliminate the Reasonable Person Standard to avoid these sort of conundrums
Diminished Capacity:
  Some JD's allow D's to argue that their diminished capacity not only foreclosed premeditation (1st Degree Murder) but also Malice (voluntary homicide), resulting in a reduction in any sentence to Manslaughter.
State v. Sexton (Vt., 2006)
- D beat a Japanese exchange student to death and argued that his use of a variety fo drugs (LSD) diminished his capacity to harbor malice - Vt. Supreme Court ruled that he was able to present evidence that his voluntary intoxication or mental disability prevented him from forming the mens rea necessary for murder, mitigating his crime to voluntary manslaughter
State v. White (Cal. 1978)
- D, a member of the San. Fran. Board of supervisors, raised a dimished capacity defense after shooting mayor of San. Fran. & Harvey Milk (noted gay activist - board member) upon learning he wouldn't be reappointed - Jury returned a verdict of manslaughter after learning of his past depression , severe personal pressure, and resulting lack of malice - Ultimately led to riots and the abolition of the diminished capacity defense by the CA electorate (both statute and referendum)
Depraved Hear Murder
Requires that there is an understanding or knowledge of the risk (or the potential for the risk) In Malone, court implies malice because of the danger of the "uncalled for" action ie. playing Russian Roulette in "callous disregard of its likely harmful effects on others." Intent/Motive is not necessary to reach 2nd degree murder, only evidence sufficient for  a jury or judge to find intent to do the reckless action in wanton disregard to the potential threat to human life. Allows the jury to infer, to some extent, the subjective state of mind of the Defendant  (will survive appellate review so long as the jury's inference is reasonable)
Commonwealth v. Malone, 354 Pa. 180 (1946) p. 305
  Facts:  M(17) is living with Victim (13)'s Family while his father and brother are with the Army.  M asks V to play Russian Roulette with a 5 chamber pistol, which V agrees to, and M subsequently aims the gun at his side and pulls the trigger, on the third such attempt he shoots him, resulting in his death.  M is sentenced with 5-10 years in prison for 2nd degree murder.
  • M attempts to show that he did not have extreme recklessness or wanton disregard, ie. he believed he did know the risk (and it was lower because of the bullet's placement and his understanding of how it worked)
    • Government's cases for depraved heart murder relies on knowledge of the risk itself (but here, it's a bullet in a gun)!
    Question:   M appeals, contending that facts justified a conviction for nothing higher than involuntary manslaughter.
  • Does this cross the Murder/Manslaughter Line?
  Holding:  Reject appeal, holding that this was a malevolent act, which distinguishes it from Manslaughter to the level of 2nd degree murder   Reasoning:   Malice need not be aimed toward the victim, but can be constituted by wanton or reckless disregard for the potential consequences of ones actions.  Ie. It is murder to shoot into a crowd (or intentionally drive into one) even though intent may not be to kill anyone specifically (or at all).
  • Malice MAY be evidenced by "the intentional doing of an uncalled-for act in callous disregard for its likely harmful effects on others."
People v. Knoller, 41 Cal. 4th 139 (2007) p. 307 - Dog Bite Case
  Facts:
  • Ms. Diane Whipple Mauled to death in her apartment hallway by her neighbors dogs in January, 2001.
  • Majorie Knoller and codefendant Robert Noel were attorneys who were keeping two large fighting/guard dogs for an Prison Gangmember (Schneider - Aryan Brotherhood).  (Dogs 150 and 130 pounds)
  • Upon first receiving the dogs, they were warned by their veterinarian (by letter) that the dogs would be a liability in any household, that they had no training or discipline, and that they reminded him of a recent disfiguring attack against a child.
  • Between April 2000 and the January mauling, the dogs there were reportedly as many as 30 incidents of the dogs threatening humans or being out of control, particularily in the building
  • Ms. Whipple was bitten by one of the dogs in December, 2000 and purportedly was frightened of them and attempted to keep distance
  • January 26, 2001: Neighbor heard Ms. Whipple scream and called 911 while she was being attacked
  • Unclear to what extend Knoller intervened, officers reported that she was looking for her keys when they were on scene, but did not ask about Ms. Whipple's condition or express concern
  • Knoller went on Good Morning America and claimed that Whipple could have "slammed her door" or "stayed still on the floor."
  • She also acknowledged not having called 911 for help herself
  • But Noel and Knoller charged with manslaughter, knoller also charged with 2nd degree (depraved heart) murder
  Procedural Posture:  
  • After conviction for 2nd Degree Murder,  Knoller sought a new trial, which was granted based on need for jury instruction (I infered this) that second degree murder requires that one "subjectively knows, based on everything, that the conduct that he or she is about to engage in has a high probability of death to another human being."
  • Court of appeals reveres the trial court's order, holding that a second degree murder conviction can be based on a defendant's "subjective appreciation and conscious disregard of a likely risk…of serious bodily injury"
    Question:   What is the proper instruction, rule?   Holding:  Court concludes that neither lower court was correct, and that "a conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life."   Reasoning:  N/A Dissent: None
State v. Davidson (Kan. 1999)
- Kansas Supreme Court affirmed second degree murder conviction of and 12 year prison sentence of woman whose three Rottweiler's escaped and killed an 11 year old boy waiting for the bus. - Held that it "could be inferred that she was extremely indifferent to the value of human life" because she failed to properly train the animals despite advise from experts and prior  aggressive behavior
Intent to Cause Serious Bodily Harm => Second Degree Murder
Common-law rule equates the intent to cause harm as equivalent as a criminal purpose against someone's life (Weller) What constitutes "serious bodily harm" varies significantly
Commonwealth v. Dorazio (PA, 1950)
Court found that a boxer's bludgeoning to death a rival union member constituted intent to commit serious bodily harm (even though use of fists generally illicits manslaughter) because of the nature and extent of the attack, and his own skill and size.
Weller v. People (Mich., 1874)
- Limits intent to commit serious bodily harm  to those acts that "might naturally or commonly involve loss of life or grievous mischief."  -- death must be a "likely result."
Commonwealth v. Welansky, 316 Mass. 383 (1944) p. 316
  Facts: W is owner of Coconut Grove nightclub in Boston. 
  • Fire broke out at the club and killed 492 people (second most deadly in US history).W was not present at the time (hospitalized)
  •  Evidence showed that club exceeded capacity, that ceilings lined with satin were a fire hazard, and that many of the emergency exits were blocked or hidden (to keep people from coming in or out without paying)
  • Sentenced to 12-15 years for involuntary manslaughter based on MA's contention that the deaths were proximately attributable to his "wanton or reckless conduct"
  Question:   What is "wanton or reckless conduct," what amounts to criminal negligence or recklessness?   Holding:  Trial Judge charged the jury correctly when he said that "to constitute wanton or reckless conduct, as to distinguish it from mere negligence, grave danger must to others must have been apparent and the D must have chosen to run the risk rather than alter his conduct so as to avoid the act or the omission (if a duty to act) which caused the harm."   Reasoning:  Court reasoned that even if a particular D was stupid or heedless, the jury must judge whether "an ordinary normal man under the same circumstances would have realized the gravity of the danger."
  • Application of an objective reasonable standard of application, no need for a subjective appreciation of the risk on the part of the Owner (if he HAD had a subjective appreciation, then he might have been guilty of depraved heart murder)
    • What about breaking the fire code, was he not made aware of the risk directly?
    • But, he wasn't present at the time…
    • This is entirely jury dependent, the evidence could probably have sustained depraved heart murder
 
Commonwealth v. Feinberg, 433 Pa. 558 (1969) p. 317
  Facts: - F was a cigar store owner who sells Sterno (heating fuel) but knew that his customers used it as a substitute for commercial alcohol
  • 1963, Sterno produces a new "industrial use" sterno that contains more toxic methanol (wood alchohol)  ie. from 3.75% up to 54% by content
  • The containers had highly visible labels saying for industrial use and poisonous (skull and cross bones on cover, etc)
  • F sold new sterno to customers (after having received a shipment)  33 of whom died from poisoning
  • Demonstrated he knew of risk by returning the bulk of the order, lying to the police, and askign that his customers hide the sterno after they purchased it
  Question:   F alleges that there was not the proper causal link to between his sales and the customers death to show that they died due to the consequences of his unlawful act or his doing a lawful act in an unlawful way.   Holding:  Court holds that because the evidence showed that he was aware that he was selling the Sterno for an illicit purpose, there was an appropriate causal link.   Reasoning:   F sold the Sterno knowing it was dangerous if consumed, F knew his customers would drink it, F sold it to them anyway, they drank it and died…therefore his negligence in selling it to them caused their death.  
State v. Jones (NC, 2000) - drunk driving
Man kills 2 college students while driving after drinking and on prescription, he was speeding, had other accidents, etc. - Jury convicted of Felony Murder (1st Degree) for use of car as a deadly weapon, supreme court reversed due to reduced Mens Rea, resulting in two counts of 2nd degree murde - 2nd Degree Murder convictions for drunk drivers are now common
  • United States v. Sheffy (6th Cir, 1995)
  • Jefferies v. State (Alaska, 2004)
People v. Sung Soo Choi (CA, 1997) - exorcism case

D believed a man's wife was possessed by demons, subsequently he and the husband performed an exorcism ritual that resulted in the woman's death from internal injuries
Both men convicted of manslaughter (4 and 2 years) but acquitted of 2nd degree murder because judge reasoned that they  were focused on saving the woman due to their sincere belief in her possession
State v. McKnight (S.C., 2003)

Homeless cocaine addict is convicted of homicide by child abuse (2nd degree murder) for producing stillborn child that had traces of cocaine in its body
(but see State v. Aiwowi (Hawaii, 2005) reversing manslaughter conviction with a fetus victim)
Commonwealth v. Nixon (P.A., 2000)

Parents convicted of manslaughter for not providing treatment to their 16 year old daughter who died following a diabetic comma.  They argued that their religious beliefs prohibited them from providing care and that their daughter had a right to make her own medical decisions.
State v. Mangano (LA, 2007)

Nursing home owners acquitted of negligent homicide charges after allowing 35 of their residents to die during Hurricane Katrina when they failed to evacuate
Though prosecution showed that three other homes did evacuate, and that this home only had 1 9 passenger van and had turned down bus assistance, the jury accepted notion that the D's were trying to spare their residents trauma…and that it was the state and country that had let the residents down by failing to order an evacuation.
United States v. SabreTech (11th Cir, 2001)

A state attempt to charge an aircraft maintenance company with negligent homicide for fialing to pack oxygen containers appropriately aboard a ValuJet flight that crashed and killed 110 passengers
Jury convicted only of failing to train employees and all homicide charges were dismissed when the company pleaded no contest to transporting hazardous waste and made $500,000 donation to airline safety,
State v. Ford Motor Co. (Ind. Sup. Ct, 1980)

First attempt to prosecute a US Corporation for death from a defective product (safety defect in the Ford Pinto results in three teenagers dying in rear-end collision)
Jury acquitted because Ford had attempted to recall the car months before this accident
Significant damages were made in Tort
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