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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


I am most conservative and appropriate in my approach so if you comment and/or have questions to ask, please do so with an equal degree of appropriateness.



I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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I have no set schedule of posting, but I hope you will check in from time to time.

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Wednesday, February 3, 2010

3 - Criminal Law - Death Crimes - Murder (Malice)

3 – Death Crimes - Murder - Malice

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

Once you have done your complete analysis of homicide, you can move on to malice. Malice here, does not mean ill will or hatred, but rather “intent.” There are four types of murder, malice, (1) intent to kill, (2) intent to cause serious bodily injury, (3) depraved heart/willful and wanton conduct/gross negligence and (4) the Felony Murder rule. In other words, you can establish the second element of murder (that is, Malice) in any one of four ways – by showing any one of the four types of malice.

1. Intent to Kill:
          Traditionally, intent to kill is established in the same manner as intent for intentional torts is established: (1) Desire. Where a D desires the result or (2) where the D is substantially certain that his act will produce the result.

          It can also be established under the “Deadly Weapon Doctrine:” The use of a deadly weapon during the killing will create an inference of intent to kill. Where one intentionally uses a weapon on another and kills him, it is presumed that the actor intended to kill him. That inference can be rebutted, it is a rebuttable presumption.

2. Intent to Cause Serious Bodily Injury:
          The tests here are the same as the traditional tests for intent to kill.

3. Depraved Heart Murder:
          Depraved heart murder is a killing where the D acts with extreme indifference to human life. It is important to note that depraved heart murder is not sufficient to show first-degree murder, but rather second degree murder.

4. The Felony Murder Rule:
Felony murder is death occurring during the perpetration of an independent and inherently dangerous felony.  The "felony" requirements of the FMR are limited to felonies that are dangerous in the abstract (defined by statute as dangerous) – this is the minority position – or felonies that are dangerous by the manner of commission – this is the majority position.

Here is a summary: 
1.               Under the strict, traditional common law (minority) view felony murder is any death that was a proximate, foreseeable result of committing the felony.
2.               Under the modern (majority) rule, the FMR does not apply when a third party, such as a police officer, bystander or a victim of the felony, commits a justified homicide, that is, kills the felon.
3.               a majority still holds that when a third party (non-felon) mistakenly kills another innocent third party, the death of the third party will be considered a foreseeable result of the felony.  A small minority does not allow the FMR to apply anytime a non-felon is the killer.
4.               Generally, there is no Vicarious Liability  if a co-felon is killed by a third-party (non-felon). Suppose  two robbers have left the scene of a liquor store robbery and one of them is shot and killed by the store’s owner on the street.  Is the surviving co-felon liable for death of his co‑felon who was shot by the store owner?
a.      Yes, under the strict, traditional common law view. 
b.     No, under the modern view ‑ since the killing of the other robber was caused by a third party (non‑felon).  This is an exception to the Common Law FMR.  It is called the Redline Rule or the 3rd Party Killer rule. 
c.      So, at CL, all felons are vicariously liable for a death caused during a felony.  The modern rule – the Redline rule or the 3rd party killer rule – is that there is no liability if a third party kills one of the felons, so here, the surviving felons are not liable.
5.               A killing by a police officer, or anyone resisting the crime or attempting to enforce the law is not FM (the killing is justified)
6.               A killing of a co-felon by another co-felon is not FM (because the co-felon willingly participated in the crime.
7.               A felon accidentally kills himself is not FM

Next, we’ll look at Justification and Excuse.

Professor Doug Holden
© Douglas S. Holden. All Rights Reserved

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