by Michael H. Hoffheimer(1)
A man's state of mind is hard enough for him to know,
much less for others to prove without his help.(2)
Table of Contents
I. Historical Background
A. Common Law
B. Non Common Law Jurisdictions
C. Mississippi Statutory Treatments of Murder
1. Mississippi Territory 1798-1817
2. Early State Legislation 1817-1824
3. The Penitentiary Code of 1839: Root Current Homicide Statutes
4. Consolidation and Simplification (1857)
From "premeditated design" to "deliberate design"
Felony murder and felony manslaughter
Elimination of degrees of manslaughter
Resurrection of malice
5. Modern Adjustments
Causing death of fetus
6. Summary: Unintended Killings Under the
II. Unintentional Criminal Homicide in Other
A. States and Federal Government
B. Model Penal Code
3. Negligent homicide
III. Mens Rea for Unintentional Murder and
A. Depraved Heart Murder
1. Language of the Statute
Intent to kill
Dangerous to others
Depraved heart regardless of human life
Killings with deadly weapons
Killings without deadly weapons
B. Culpable Negligence Manslaughter
1. Language of the Statute
2. Judicial Elaboration
Motor vehicle fatalities
Aggravated assault and killings with deadly
Other unlawful acts
IV. The Confusion of Mens Rea for Murder and
A. Inconsistent Evaluations of Evidence
B. Inconsistent Law Governing Instructions
A. Statutory Reform
B. Judicial Clarification
This article discusses the law of unintentional homicide in Mississippi. It also considers the law governing intended killings to the extent legal definitions of intent illuminate the requirements for unintended killings. It does not, however, separately consider capital murder or murder liability for unintended killings committed during the commission of or attempt to commit felonies.(7) Nor does it separately consider capital murder or murder liability that results under the doctrine of transferred intent--that is, when an unintended victim dies as the result of the attempted murder of another.(8)
Because there is little published scholarship on Mississippi homicide law, Part I examines the history of murder and manslaughter in Mississippi. Part II compares the treatment of unintentional criminal homicide in Mississippi with that in other jurisdictions. Part III analyzes the culpable mental states required for unintentional murder and manslaughter in Mississippi. Part IV explores conflicts and inconsistencies in cases evaluating the sufficiency of evidence and the need for jury instructions. The conclusion suggests possible legislative and judicial solutions to the present confusing and inequitable state of the law.
I. Historical Background
A. Common Law
William Blackstone defined murder in the eighteenth century as occurring "when a person of sound memory and discretion, unlawfully killeth any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied."(9) As Blackstone recognized, malice provided the mental element that distinguished murder from other homicide crimes and from noncriminal homicide:
This [malice aforethought] is the grand criterion which now distinguishes murder from other killing: and this malice prepense, malitia praecogitata, is not so properly spite or malevolence to the deceased in particular, as any evil design in general; the dictate of a wicked, depraved, and malignant heart: un disposition a faire un mal chose [an inclination to do an evil thing]: and it may be either express, or implied in law.(10) Some scholars believe malice aforethought originally meant a preconceived design to kill.(11) They speculate that the distinction between express and implied malice evolved as courts extended murder liability from intended to unintended killings.(12) In some statutory schemes express malice is likewise defined as an intent to kill.(13) But malice aforethought probably did not originally mean premeditation.(14) After the Norman Conquest, the king's common law courts assumed jurisdiction over all homicides, and the malice aforethought required for murder acquired its distinct meanings as the courts distinguished murder from homicides resulting from the sudden fights and provocation that became classified as manslaughter.(15) Accordingly, malice aforethought probably required not a goal-directed intent to kill so much as a preexisting hostility to the victim.(16)
As late as Blackstone, the distinction between express and implied malice related more to the objective evidence of motivation of ill will directed toward the particular victim.(17) A cold-blooded or premeditated killing certainly provides an example of express malice, but the examples Blackstone chose were more nuanced. His examples of express malice included duels and killings in response to a sudden provocation where the killer beat the victim in a cruel and unusual manner but did not necessarily mean to cause the victim's death.(18) These examples share the feature that death occurred in contexts where the killer's hostility was transparent or notorious, and the hostility motivated the fatal assault on the victim. For Blackstone express malice also included killings that demonstrated a general animosity to all humans.(19) As examples he cited a killer who "coolly discharg[ed] a gun among a multitude of people" and conspirators who agreed to engage in a violent offense "of which the probable consequence might be bloodshed"(20) but not necessarily death. Express malice in these contexts included "an express evil design, the genuine sense of malitia."(21)
Implied malice, in contrast, included deliberate killings where no additional evidence of hostile motive was present.(22) This distinction between express and implied malice derived from Coke who had explained malice prepense as existing "when one compasseth to kill, wound, or beat another, and doth it sedata animo."(23) Coke had also observed that malice was implied when one killed "without any provocation on the part of him, that is slain,"(24) though Coke's understanding of implied malice evidently did not include acts of extreme recklessness.(25) Hale followed Coke,(26) and Blackstone followed both in defining implied malice to include a killing that occurred suddenly and in the absence of any other evidence of particular ill will: "And if a man kills another suddenly, without any, or without a considerable, provocation, the law implies malice; for no person, unless of an abandoned heart, would be guilty of such an act, upon a slight or no apparent cause."(27) Thus for Blackstone implied malice was a residual category. It covered all murders that were not accompanied by express malice, and it also provided the theoretical justification for the doctrines of felony murder and transferred intent.(28)
From the cases Blackstone derived "a general rule, that all homicide is malicious, and, of course, amounts to murder, unless where justified by the command or permission of the law; excused on the account of accident or self-preservation; or alleviated [mitigated] into manslaughter."(29) He also posited a broad evidentiary presumption: "For all homicide is presumed to be malicious, until the contrary appeareth upon evidence."(30)
Applied literally, Blackstone's presumption would have reduced the law of murder to a series of special defenses to strict criminal liability for homicide, and the common law never adopted such an approach.(31) But this presumption revealed that Blackstone's principal concern was to elaborate the analytic process by which common law courts arrived at a conclusion of malice aforethought. By doing so, Blackstone articulated an essentially procedural and evidentiary dilemma with which common law jurisdictions continue to struggle: on the one hand, the law demands proof of a culpable mental state; on the other hand, the mental state must often be inferred from the act of killing.(32) In response to this dilemma, statutes have occasionally criminalized homicides committed with certain instrumentalities,(33) and cases have recognized a presumption of malice when certain weapons are used.(34)
Notwithstanding the multiple, indeterminate associations of malice aforethought in the nineteenth century,(35) academic authorities today tend to treat "malice" as terminology adopted by courts as a post hoc rationalization for punishing a variety of mental states as murder. For over a century scholars have reduced malice aforethought to four different mental states accompanying the conduct that results in death: 1) intent to kill, 2) intent to inflict serious bodily injury, 3) extremely reckless disregard for the value of human life, and 4) felony murder.(36)
Mississippi and other American jurisdictions inherited the common law conception of malice in the form it had taken in the eighteenth and nineteenth centuries. By that time malice had come to include unintended killings resulting from both aggressive acts towards individuals and from extremely reckless conduct more generally. In contrast, England in the last century abolished murder liability for unintended killings. In the 1950s, as part of a searching reexamination of criminal laws, the Royal Commission on Capital Punishment and law reform committees concluded that "persons ought not to be punished for consequences of their acts which they did not intend or foresee."(37) Felony murder was abolished in England in 1957.(38) The English courts ultimately restricted liability for unintended killings to situations where the defendant knew that death was a highly probable result; and they abandoned even that form of culpability for murder in 1985.(39) Today English law accepts only two culpable mental states for murder: "an intent to kill, or an intent to cause grievous bodily harm."(40)
B. Non Common Law Jurisdictions
Jurisdictions outside the common law tradition are divided
over whether to classify reprehensible, unintended killings among their
most serious form of criminal homicide. A few countries explicitly make
some form of extreme recklessness sufficient to establish liability for
their most serious form of criminal homicide.(41)
Most others rank unintended killings as a lower form of homicide.(42)
C. Mississippi Statutory Treatments of Murder
1. Mississippi Territory 1798-1817
Federal legislation establishing the Mississippi Territory (which comprised the land that would constitute the states of Alabama and Mississippi) provided that its government be "similar to that which is now exercised in the Territory northwest of the Ohio" except that slavery was not prohibited.(43) The Northwest Ordinance had provided for a governor and three judges and had given the governor and a majority of the judges the power to "adopt and publish in the district such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district."(44)
The governor and judges of the Mississippi Territory began to adopt laws in January 1799.(45) The first laws published in 1799 to 1800, eventually known as Sargent's Code, contained criminal provisions dealing with treason, murder, manslaughter, arson, burglary, robbery, riots, perjury, larceny, forgery, fraud, mayhem, usurpation, and battery.(46)
The code's definition of murder incorporated the common law requirement of malice aforethought: "If any person or persons, shall with malice aforethought, kill or slay another person, he, she or they so offending, shall be deemed guilty of murder, and upon conviction thereof, shall suffer the pains of death."(47) It did not further define "malice aforethought." It appears, however, that the drafters did not assume that malice aforethought was automatically established by killings perpetrated during the commission of or attempt to commit felonies, for they separately provided for murder liability for deaths occurring during particularly violent forms of burglary(48) and robbery(49) but for no other crimes.
The first statutory definition of manslaughter likewise tracked the common law on involuntary manslaughter: "If any person or persons, shall wilfully kill or slay another person, without malice aforethought; he she or they so offending, shall be deemed guilty of manslaughter; and upon conviction thereof, shall be punished as at the common law, hath heretofore been used and accustomed."(50)
By 1807 the Territory was operating with a territorial legislature, which adopted new criminal statutes that prohibited "wilful murder" without defining the elements of that offense.(51) Survivors of duels that resulted in death were also guilty of wilful murder.(52) The difference between murder and manslaughter was widened in 1814 when a statute authorized juries to sentence persons convicted of manslaughter to no more than one year in prison and to impose a fine of no more than five hundred dollars.(53)
2. Early State Legislation 1817-1824
In 1817 Mississippi gained statehood, and in 1820 the state legislature adopted comprehensive criminal legislation that retained the death penalty for murder. The statute referred to the crime simply as "murder"(54) rather than "wilful murder." The legislature preserved the wide gap between the punishments for murder and manslaughter, prescribing that persons convicted of manslaughter be fined and branded on the hand with the letter M.(55)
There was dissatisfaction with the state's criminal laws, because two years later the legislature enacted a series of additional homicide statutes. Poison was a particular concern, and principals and aiders and abettors who committed "wilful killing by poisoning" were made guilty of "wilful murder."(56) Following an old English statute,(57) unprovoked stabbing-killings were made wilful murder.(58) Survivors of fatal duels and aiders and abettors were guilty of murder.(59) The courts early assumed that legislative references to "murder" imported the common law element of malice aforethought.(60)
Legislation in 1822 restated verbatim the existing murder statute.(61) But lawmakers now thought branding was insufficient punishment for manslaughter, for while they copied most of the 1820 manslaughter statute, they added authority for the trial judge to impose a prison sentence at his discretion.(62) Moreover, in a separate statute they provided that persons who committed manslaughter a second time were to be sentenced to death.(63) Responding to a problem raised in common law treatises,(64) they provided that perjury committed with the purpose of causing death should be treated as murder when death resulted.(65) Lawmakers also enacted defenses requiring a special verdict for specific types of excusable homicide encompassing self defense and misfortune(66) and for types of justifiable homicide encompassing law enforcement, defense of others, and lawfully chastising a child or servant.(67)
3. The Penitentiary Code of 1839: Roots of Current
In 1839 the legislature enacted a new criminal code.(68) Running nearly one hundred pages in the session laws, the topics included criminal procedure, rights of defendants, substantive criminal law, and rules and regulations for the penitentiary. Crimes were organized under seven titles according to the type and seriousness of offenses:
Crimes punishable by death
Offenses against persons punished as felonies
Offenses against property punished as felonies
Offenses affecting the administration of justice punished as felonies
Offenses against the right of suffrage
Offenses against public peace and morals punished as felonies
Offenses punished by jail sentence or fine
Although the preamble explained that the purpose of the legislation was to consolidate, simplify, amplify, and rearrange existing criminal statutes,(69) the new penal code effected the most radical revision of Mississippi criminal law in the state's history.
Copied from the New York Code of 1829,(70) the Mississippi Penal Code of 1839 reflected a new conceptual approach that valued rules of general application. The code thus removed special provisions for stabbing and poisoning, declaring: "The killing of a human being, without the authority of law, by poisoning, shooting, stabbing, or any other means, or in any other manner, is either murder, manslaughter, or excusable or justifiable homicide, according to the facts and circumstances of each case."(71) Where older statutes had referred simply to the crime of murder, the new code provided working definitions of the elements of offenses and sought to avoid technical terminology. The code eliminated the word "malice" from definitions of both murder and manslaughter.(72) This yielded a new formulation for murder that has been retained with modifications down to the present:
Such killing, unless it be manslaughter or excusable or justifiable homicide, as hereinafter provided, shall be murder in the following cases:
1. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being;
2. When perpetrated by an act eminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual;
3. When perpetrated, without any design to effect death, by a person engaged in the commission of a felony.(73)The first section was probably designed to cover cases of express malice. The second section covered cases of implied malice. The third section codified the doctrine of felony murder. The statute's broad definitions eliminated the need for additional statutes declaring killings by dueling to be murder, though a possible jurisdictional defense was removed by providing that it was murder for a resident to agree to fight a duel out of state when the victim died in Mississippi.(74)
The Penal Code of 1839 amplified previous efforts to define the residual categories of homicide. Any killing by "act, procurement, or omission" that did not qualify as murder was "either justifiable or excusable homicide, or manslaughter."(75) Justifiable homicide was defined to include public acts of law enforcement.(76) Justifiable homicide also extended to acts of private persons resisting murders or felonies,(77) defending themselves and certain third persons,(78) and arresting felons, suppressing riots, and keeping the peace.(79)
Excusable homicide included two categories. The first, corresponding to the common law defense of accident and misfortune, applied where death resulted unintentionally from lawful acts.(80) The second applied to provoked, heat-of-passion killings and to affrays or sudden combats.(81) This second category effected a radical, and perhaps unintended, change from the common law that may have resulted from a misreading of Blackstone. In discussing express malice, Blackstone had written that "if even upon a sudden provocation one beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, yet he is guilty of murder by express malice."(82) Blackstone meant to explain that a particularly heinous method of killing in response to provocation could display sufficient evil motive to qualify as malice. This explanation was necessary because at common law, absent such malice, the unlawful killing would be manslaughter, not excusable homicide. It is possible the drafters, reading Blackstone's explanation in isolation, may have misunderstood him to require such a cruel and unusual method of killing for homicide liability in general. Conversely, they may have misunderstood him to imply that the absence of such methods constituted excusable homicide.
Perhaps, however, the original drafters in New York just thought the common law rule was too harsh. In any event, they generously extended excusable homicide to hot-blooded provoked and sudden combat killings but only when no undue advantage was taken, no dangerous weapon was used, and no cruel or unusual manner was employed. These requirements for excuse in turn led to the addition of two special forms of voluntary manslaughter. The first required a "cruel and unusual" manner of killing: "The killing of a human being, without a design to effect death, in a heat of passion, but in a cruel and unusual manner, unless it be committed under circumstances as to constitute excusable or justifiable homicide, shall be deemed manslaughter in the second degree."(83) The second required a dangerous weapon: "The killing of another, in the heat of passion, without a design to effect death, by a dangerous weapon, in any case except such wherein the killing of another is herein declared to be justifiable or excusable, shall be deemed manslaughter in the third degree."(84) The common requirement of both forms of manslaughter, that the killing be "without a design to effect death," was ambiguous. The absence of design might have signified merely that the killer did not have to have a general intent to kill.(85) But more likely, it meant the absence of a specific intent to kill in cold blood or with deliberation, because killings with "premeditated design" were defined as murder. In other words, premeditated design and "heat of passion" were originally understood as mutually exclusive.(86)
While all killings with premeditated design were murder, heat-of-passion and sudden combat killings were graded according to the method of death or the instrumentality employed. When they occurred with neither undue advantage, nor weapon, nor in cruel or unusual manner, they were excused. When they were not excusable but occurred without a weapon by means neither cruel nor unusual, they were fourth degree manslaughter, punished by imprisonment up to two years. When they occurred in a cruel and unusual manner, they were second degree manslaughter, punished by imprisonment from four to seven years. When they occurred with a dangerous weapon, they were third degree manslaughter, punished by imprisonment from two to four years.(87)
The Penal Code of 1839 added other forms of manslaughter. Particularly confusing was the form of manslaughter committed during a crime or misdemeanor:
The killing of a human being, without a design to effect death, by the act, procurement, or culpable negligence, of any other, while such other is engaged--
1. In the perpetration of any crime or misdemeanor not amounting to felony: or,
2. In the attempt to perpetrate any crime or misdemeanor,
--in cases where such killing would be murder at common law, shall be deemed manslaughter in the first degree.(88)This seemed on its face to codify misdemeanor-manslaughter. Indeed, New York courts so construed the New York model for this statute.(89) Nevertheless, perhaps because the statute appeared to mitigate what would have been murder liability,(90) the statute was read to impose liability for killings of, rather than by, misdemeanants.(91) On the one hand, this interpretation may have resulted from careless reading of a poorly drafted statute. On the other hand, it may have actually expressed the legislature's purpose. The deliberate killing of innocent victims was murder, and the deliberate killing of felons was justifiable homicide under certain circumstances. So the drafters may have meant to fill a gap between the killing of innocent victims and felons by classifying the killing of persons committing misdemeanors and attempts as manslaughter. A similar construction was given to another statute that imposed manslaughter liability on trespassers who "involuntarily" killed, and the language of this statute was later altered to impose liability on the killing of trespassers.(92) Over time, the manslaughter statute prohibiting killings by (or of) misdemeanants metamorphosed into today's misdemeanor manslaughter statute.(93)
The most likely explanation, and the simplest, is that the legislature originally meant to criminalize culpable negligence manslaughters committed during misdemeanors and trespasses. It enacted separate statutes for those killings in order to punish them more severely. (They ranked as first and third degree manslaughter). But according to this explanation, the statutes became redundant when degrees of manslaughter were eliminated in 1857(94) as all killings with culpable negligence were already manslaughter. Nevertheless, the statutes were not repealed, and unwary prosecutors stumbled over them, and courts, revisers, and legislators searched them assuming there was some reason for their existence.
The 1839 Code also provided that the killing of a felon was manslaughter under certain circumstances.(95) At common law, a person who killed an assailant, but who was the initial aggressor or employed unreasonable or unnecessary force in self defense, was not entitled to a defense of excusable homicide; however, his or her criminal liability was mitigated to manslaughter under the theory of imperfect self defense.(96) The 1839 Code offered a comparable mitigation to those who killed a felon where the homicide was not excusable--such as when the killing was not necessary or when the victim had ceased committing or attempting to commit the felony.(97)
Other manslaughter statutes criminalized assisted suicide,(98) killing unborn quick children,(99) and willfully allowing dangerous animals to go at large with knowledge of their dangerous propensities.(100)
Shipping disasters motivated a manslaughter statute that criminalized wilfully or negligently overloading boats for profit.(101) The horrors of steamboat explosions led to manslaughter liability for captains, pilots, and engineers of steamboats who caused death by allowing too much pressure in boilers from ignorance or neglect or for the purpose of racing another boat.(102) Deaths caused by drunken physicians were also punished as manslaughter.(103)
The catchall manslaughter statute covered all other unexcused and unjustified homicides that were not murder: "Every other killing of a human being, by the act, procurement, or culpable negligence of another, when such killing is not justified or excusable, or is not declared in this act murder, or in this title manslaughter of some other degree, shall be deemed manslaughter in the fourth degree."(104)
4. Consolidation and Simplification (1857)
The growing number of statutes and cases together with the complexities of practice before the numerous state courts led the legislature in 1854 to propose a complete revision of the code. It authorized the justices of the High Court of Errors and Appeals to appoint three commissioners "to revise, digest, and codify the laws of this state, and to propose such alterations or amendments thereof, and such new laws, as they may deem expedient."(105)
The resulting Revised Code of Mississippi of 1857 radically altered the presentation of laws. Statutes were grouped by topic, and topics were arranged alphabetically. Thus within the chapter "Crimes and Misdemeanors," all murder and manslaughter statutes fell under the rubric "homicide," and "homicide" fell alphabetically between "highways" and "incest." This cumbersome method of organization, popular with nineteenth-century treatise writers, was preserved by all subsequent codes until 1972.
The 1857 recodification resulted in several important, lasting changes to the content of the homicide statutes.(106)
From "premeditated design" to "deliberate design." The operative definition of intentional murder was revised:
The killing of a human being, without the authority of law, by any means, or in any manner, shall be murder in the following cases:--
When done with deliberate design to effect the death of the person killed, or of any human being:
When done in the commission of an act eminently dangerous to others, and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.(107)The reason for substituting "deliberate design" for "premeditated design" is not obvious, and the failure to repeat the substitution in the following paragraph obscured the dichotomy originally established between the first form of murder and the other two.
Felony murder and felony manslaughter. Felony murder, the third category of murder, was significantly reduced in scope in 1857. Under prior law any killing without design during the commission of a felony qualified as murder without regard to the kind of felony.(108) In revising the code, the legislature limited murder liability to those felons who caused death while committing or attempting to commit only certain of the most serious felonies: "[Killing is murder] [w]hen done without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, arson, or robbery, or in any attempt to commit such felonies."(109) The predicate felonies corresponded roughly to the most serious crimes. Arson under certain circumstances was itself a capital crime.(110) Rape was punishable by life imprisonment.(111) Although forgery, like burglary, was punishable by up to fifteen years in prison,(112) and kidnapping, like robbery, up to ten years in prison,(113) forgery and kidnapping were not included as predicate felonies under the statute.(114)
The exclusion of other felonies from the list must have been perceived as creating a gap, for the legislature simultaneously enacted a new manslaughter statute:
The killing of a human being, without malice, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of any felony, except rape, burglary, arson, or robbery, or while such other is attempting to commit any felony, besides such as are above enumerated and excepted, shall be deemed manslaughter . . . .(115)This statute copied the manslaughter statute that had either imposed misdemeanor manslaughter liability or mitigated liability for killing a misdemeanant from murder to manslaughter.(116) The new felony manslaughter statute was joined to that statute in the code.(117) Accordingly, the meaning of the new statute depends on the meaning its precursor was understood to have in 1857. If the codifiers understood the model to incorporate the doctrine of misdemeanor manslaughter, then the new statute plainly meant to provide a form of felony manslaughter liability for deaths caused during the commission of or the attempt to commit those felonies not listed in the felony murder statute.
As amended, the statute added the general requirement that the killing occur "without malice" during the commission of a felony.(118) This addition confused the probable meaning of the statute because at common law homicide committed during the commission of the felony established malice.(119) Indeed, the meaning of these statutes continued to baffle codifiers and courts for over a century.(120)
Elimination of degrees of manslaughter. The 1857 revision eliminated the four different degrees of manslaughter established by the Penitentiary Code of 1839. All forms of manslaughter were now governed by the same penalty: "Any person convicted of manslaughter, shall be fined in a sum not less than five hundred dollars, or imprisoned in the county jail not more than one year, or in the penitentiary not less than two years."(121) Because the statute contained no minimum sentence, the trial judge could impose any sentence ranging from a fine up to life imprisonment.(122)
Resurrection of malice. The 1839 laws had avoided the term "malice" in defining both murder and manslaughter.(123) Although the 1857 Code did not restore malice to the definition of murder, it did add the requirement of "without malice" to the new manslaughter statute.(124) It also amended two other manslaughter statutes to substitute the requirement of "without malice" for the previous requirement of "without design."(125) The misdemeanor manslaughter statute was altered to require the homicide be "without malice."(126) This alteration was made, perhaps, to distinguish intentional and hot-blooded killings that qualified as manslaughter from "deliberate design" murder.(127) Likewise, the general involuntary manslaughter statute was amended to substitute lack of "malice" for lack of "design": "The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, without authority of law, and not in necessary self-defence, shall be deemed manslaughter."(128) A similar change was made for involuntary manslaughter committed by use of a dangerous weapon: "The killing of another in the heat of passion, without malice, by the use of a dangerous weapon, without authority of law, and not in necessary self-defence, shall be deemed manslaughter."(129) None of the other manslaughter statutes with culpable mental states, which included "deliberately assisting," "wilful killing," "involuntarily killing," and "culpable negligence," were similarly altered to require lack of malice.(130)
Although malice was not added to the statutory definition of murder, the old common law idea that murder required malice, and manslaughter its absence, proved tenacious. Edward Mayes, Dean and Professor at the University of Mississippi School of Law, taught his students: "Murder is the unlawful killing of a human being with malice aforethought, including duels. Manslaughter is the unlawful killing of a human being without malice."(131) In a series of opinions the supreme court maintained that the statutory requirements of "premeditated design" and "deliberate design" meant "express malice" and a "sedate, deliberate mind and formed design [to] kill another."(132) Today "deliberate design," "premeditated design," and "malice aforethought" are said to be synonymous, and deliberate design can be formed only moments before the act evidencing the intent.(133) But when voluntary manslaughter instructions are given, the murder instructions must carefully explain "how to determine the `aforethought' portion of `malice aforethought' or the `deliberation' portion of `deliberate design.'"(134) This resurrection of malice led the courts once again to confront the vexing issue of implied malice.(135)
The troubling consequence of this is that the terms "malice" and "malice aforethought," which bedeviled legal scholars for generations, now figure prominently in instructions designed to help jurors apply the law of Mississippi. Even when judges in England were forced by tradition to employ the common law terminology in the 1800s, they were already sternly cautioning jurors not to give the words "malice aforethought" their ordinary meaning.(136) Paradoxically, the Mississippi courts, blessed with legislation that avoided the terms, continued to instruct jurors in language of malice. Appellate courts affirmed convictions obtained upon such instructions and opined broadly that "malice aforethought" was synonymous with "deliberate design."(137)
The Model Jury Instructions for deliberate design murder today offer the trial judge confusing choices. One model instruction requires the jury to find that the defendant "willfully and with malice aforethought killed" without defining malice or willfully.(138) A second requires the jury to find the defendant "did, with deliberate design, kill."(139) A third combines the first two and requires the jury to find that the defendant "[w]illfully, with malice aforethought and with a deliberate design to effect the death of [victim] killed [the victim]."(140) The three manslaughter instructions similarly require the jury to find that the defendant killed "without malice"(141) but do not define or explain malice.
5. Modern Adjustments
By 1857 the basic structure of Mississippi's current homicide law was in place. Three significant innovations took place in the twentieth century.
Capital murder. Mississippi never had degrees of murder and did not distinguish murder and capital murder until 1974.(142) As did previous statutes for the state and territory, the 1857 Code punished murder by death.(143) And in abandoning the elaborate degrees of manslaughter adopted in 1839, it left the punishment of manslaughter to the court's discretion.(144)
Death remained the only punishment for murder until 1875 when the legislature provided: "[T]he jury may, in their discretion, declare that the penalty, or punishment, shall be imprisonment in the Penitentiary for life; but if the jury shall omit to so declare the penalty in their verdict, then the Court shall pronounce the death penalty."(145) The requirement of unanimous jury agreement to depart from capital punishment was strictly imposed.(146) Only in 1906 did legislation effectively provide life-imprisonment as the default punishment for murder by requiring a jury to agree unanimously on a death sentence.(147)
The power of juries to impose death penalties as a matter of unguided discretion was declared unconstitutional in 1972.(148) The legislature responded in 1974 by revising the murder statute, specifying those forms of homicide for which capital punishment could be imposed.(149) Legislation also established criteria for a jury to employ in deciding whether to sentence to death. Unless the defendant was the principal who "actually killed," these criteria require that the defendant intended or foresaw the victim's death by specifying that the capital defendant must have attempted or intended to kill, or must have "contemplated that lethal force would be employed."(150)
The sentencing jury must also find that "sufficient aggravating circumstances" exist out of eight listed factors.(151) To impose a sentence of death the jury must unanimously find that none of seven mitigating circumstances outweigh aggravating circumstances.(152) Designed to comport with evolving constitutional standards,(153) the procedures appear onerous. Nevertheless, many of the factors are satisfied by routine killings that otherwise meet the elements of capital murder. Two forms of capital murder are themselves listed as aggravating circumstances: capital felony murder and capital murder by use or detonation of a bomb or explosive device.(154) The commonplace motive of pecuniary gain is an aggravating circumstance.(155) Aggravating factors also include the circumstance that the offense was "especially heinous, atrocious or cruel."(156) Because most, if not all, capital murders would satisfy this criterion, it was held to be unconstitutionally vague in the absence of further limiting definitions(157) and was subsequently narrowed to methods of killing that involve the infliction of physical or mental pain before death.(158)
Violence-prone persons are likely to have a criminal record or be incarcerated, and the fact that a defendant was previously convicted of a "felony involving the use or threat of violence to the person" or is under sentence of imprisonment are aggravating factors.(159) The fact that a killing was committed either while avoiding arrest or attempting to escape provides an aggravating circumstance,(160) as does the fact that a capital murder was committed to "disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws."(161) Knowingly creating "a great risk of death to many persons" also provides an aggravating factor.(162)
A defendant convicted of capital murder but sentenced to life imprisonment is not eligible for parole.(163)
The legislature initially designated as capital murder what had previously been statutory felony murder--killing with or without design during the commission or attempt to commit rape, burglary, kidnapping, arson, or robbery.(164) Subsequent legislation expanded the statutory felonies to include sexual battery, unnatural intercourse with a child under age twelve, and felonious child abuse.(165)
The legislature also designated the murder of certain victims as capital murder. Murder of peace officers and firemen is capital murder.(166) To qualify as capital murder under this subsection, the killing must satisfy the elements for non-capital murder. The murder must occur "while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity," and it must be "with knowledge that the victim was a peace officer or fireman."(167) The statute broadly defines peace officers and firemen:
[T]he term "peace officer" means any state or federal law enforcement officer including but not limited to a federal park ranger, the sheriff of [a county and his deputies, a constable, a marshal, chief of police] or police officer of a city or town, a conservation officer, a parole officer, a judge, prosecuting attorney or any other court official, an agent of the Alcoholic Beverage Control Division of the State Tax Commission, an agent of the Bureau of Narcotics, personnel of the Mississippi Highway Patrol, and the employees of the Department of Corrections who are designated as peace officers by the Commissioner of Corrections pursuant to Section 47-5-54, and the superintendent and his deputies, guards, officers and other employees of the Mississippi State Penitentiary.(168)Murder of "any elected official of a county, municipal, state or federal government with knowledge that the victim was such public official" is capital murder.(169)
Furthermore, murder committed by certain methods ("use or detonation of a bomb or explosive device") is capital murder.(170) Murder committed by certain killers is capital murder. These include persons "under sentence of life imprisonment" and persons offering or receiving anything of value for murder.(171) Most recently, the legislature added murders done on educational property.(172)
Causing death of fetus. Although the killing of an embryo or fetus was not homicide at common law, since 1839 Mississippi has punished as manslaughter the intentional killing of an unborn quick child under two circumstances. First, the killing of an unborn quick child is manslaughter when the death was both 1) willful(173) and 2) caused by an injury to the body of the pregnant woman that was inflicted with a mental state that would make the actor guilty of murder if the pregnant woman died.(174) Second, the old statute broadly criminalized abortions that were not necessary to save the life of the pregnant woman or were not so certified by two physicians.(175)
In 2000, this second form of manslaughter of a fetus, unconstitutional in many applications, was replaced by a broad fetal injury statute.(176) The new statute does not label fetus killing as "manslaughter," but the legislature included it in the code among the manslaughter statutes.(177) It provides that an intentional injury to a pregnant woman that "results in a miscarriage or stillbirth" is punishable by not more than twenty years, the sentence authorized for manslaughter.(178) The statute also punishes intentional injuries to a pregnant woman that result in injuries other than death of the embryo or fetus.(179)
Aggravated DUI. In 1983, as part of the implied consent law, the legislature created a new crime for causing death or inflicting serious injuries while intoxicated.(180) There are four elements. First, the defendant must meet the statutory definition of intoxicated:
(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person's ability to operate a motor vehicle; (c) has an alcohol content of ten one-hundredths percent (.10%) or more for persons who are above the legal age to purchase alcoholic beverages under state law, or two one-hundredths percent (.02%) or more for persons who are below the legal age to purchase alcoholic beverages under state law, in the person's blood based upon grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath as shown by a chemical analysis of such person's breath, blood or urine administered as authorized by this chapter; (d) is under the influence of any drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law; or (e) has an alcohol concentration of four one-hundredths percent (.04%) or more, based upon grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath as shown by a chemical analysis of such person's blood, breath or urine, administered as authorized by this chapter for persons operating a commercial motor vehicle.(181)Second, the defendant must be operating a motor vehicle. Third, he or she must be doing so "in a negligent manner."(182) And fourth, he or she must either cause the death of another or cause certain serious disfiguring or disabling injuries.(183) Originally punished by up to five years in prison,(184) the crime of aggravated DUI was held to be a lesser included offense of manslaughter.(185) The punishment was subsequently increased to ten years and then to twenty-five years imprisonment--a penalty greater than that prescribed for manslaughter.(186) This crime today is also subject to a minimum term of imprisonment of five years(187) and there is no similar minimum penalty for manslaughter.(188) Thus it should no longer be considered as a lesser offense of manslaughter.
6. Summary: Unintended Killings Under the Current Code
Under current Mississippi law, unintended killings may be either capital murder, murder, manslaughter, or aggravated vehicular homicide.
Capital murder. Capital murder can be committed in two different ways that do not require intent. First, killing is capital murder if done during the commission or attempt to commit any of the predicate capital felonies.(189) Second, killing is capital murder when it meets the definition of murder and one of the following:
the victim was a peace officer or fireman who is killed while acting in his or her official capacity or by reason of an act performed in his or her official capacity, and the killer knew the victim was a peace officer or fireman;
the victim was an elected official and the killer knew the victim was an elected official;
the murder was perpetrated by use or detonation of a bomb or explosive device;
the murder was perpetrated by a person offered or receiving anything of value;
the murder was perpetrated by a person under sentence of life imprisonment; or
the murder was perpetrated on educational property.(190)Murder. Murder can be committed without intent by an act eminently dangerous and evincing a depraved heart regardless of human life.(191) It can also be committed without intent during non-capital felonies.(192) The mens rea required for unintentional killings that qualify as murder other than felony murder and its difference from the mens rea required for manslaughter is discussed in Part III.
Manslaughter. Today unintentional criminal homicides not prosecuted as aggravated DUI are prosecuted either as depraved heart murder or under the general statute that defines manslaughter as an unlawful killing resulting from the killer's "act, procurement, or culpable negligence."(193) The mens rea required for this form of manslaughter and its difference from the mens rea required for murder are discussed in Part III.
Section 97-3-47 is today regarded as Mississippi's equivalent of a general involuntary manslaughter statute.(194) The court of appeals has even opined that the statute codifies both manslaughter based on culpable negligence and manslaughter based on an intentional wrongful act that unintentionally causes death.(195) Nevertheless, language of the statute that is today given no legal effect provides that the statute applies only to those "other" killings by act, procurement, or culpable negligence "not provided for in this title."(196) The unmistakable original meaning of this language was to limit the application of the statute to those killings not indictable under some other more specific murder or manslaughter statute, and the 1839 Code's language stated this still more explicitly: "Every other killing . . . not declared in this act murder, or in this title manslaughter of some other degree, shall be deemed manslaughter in the fourth degree."(197) The drafters in 1839 envisaged a hierarchy of degrees of murder under which the specific statutory forms of manslaughter were punished more seriously. The least serious fourth degree classification was reserved for two different kinds of killings: 1) involuntary killings with weapons and heat of passion killings by means neither cruel nor unusual that did not qualify as excusable homicide,(198) and 2) the residual category covering all other unlawful killings not prohibited by any other applicable statute.(199)
The purpose of the statutory language limiting involuntary manslaughter to "other" killings was to encourage the prosecution of killings under more specific (and more severely punished) forms of homicide. Such other more specific manslaughter provisions included killings during the commission of certain felonies(200) and misdemeanors,(201) unnecessary killings of felons,(202) involuntary homicide of trespassers,(203) unintended killing by drunken doctors,(204) and killings resulting from overloading boats(205) and boiler explosions on steamboats and railroad engines.(206)
After degrees of manslaughter were eliminated in 1857, the consequences of indicting under different manslaughter statutes became less significant. Nevertheless, the code retained the residuary language--"[e]very other killing . . . not provided for in this chapter."(207) Although this language has been preserved down to the present, there have been no cases giving it effect by requiring prosecution under other manslaughter statutes.(208) And, though the issue has apparently never been raised to the court, there have been numerous prosecutions under the statute that could have been brought under other more specific manslaughter statutes, and courts have never suggested anything was amiss.(209) Consequently, despite its limiting language, this statute has broad application to unintended criminal homicides.
Though ignored by courts and prosecutors, the Mississippi statute that is today thought to criminalize voluntary manslaughter was apparently also conceived originally to apply to certain unintended killings. The Penitentiary Code of 1839 defined manslaughter as a killing "without design" in a heat of passion but either in a cruel or unusual manner or by use of a dangerous weapon.(210) These probably covered hot-blooded, but intentional, killings without premeditation. The 1839 laws also criminalized "involuntary killing of another, by any weapon, or by means neither cruel or unusual, in the heat of passion" not otherwise declared to be excusable.(211) This probably was meant to cover hot-blooded unintentional killings with weapons. The generous excuse statute preempted much of the statute for involuntary, barehanded killings, but the manslaughter statute still applied to such killings when provocation was not sufficient as a matter of law.(212) In 1857 these statutes were consolidated and amended, substituting the new requirement of "without malice" for the old requirements of "without design" and "involuntary."(213)
The reasons for this subtle change are not clear. It is possible the change was intended merely to consolidate two similar statutes and was not intended to change the elements. The legislature in 1857, as in 1839, probably still meant to criminalize all homicides that resulted from fights in which the defendant employed a dangerous weapon or killed barehanded but in a cruel and unusual manner. The substitution of the requirement of "without malice" was thus meant to distinguish such killings from intentional murder, which had itself been redefined from "premeditated design" in 1839 to "deliberate design" in 1857.(214) Specifying that manslaughter occur "without malice" probably signaled nothing more than the absence of the need to prove the deliberate design that would make a killing murder. Accordingly, all killings by such methods constituted either murder or manslaughter except when they were committed under those circumstances that constituted a justification or excuse.(215)
The defense of justification was established by necessary self defense.(216) The defense of excuse was established narrowly when a defendant killed without intent ("by accident and misfortune") but did so in a provoked heat of passion or in an affray "without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner."(217)
The chief distinction in 1857 was still between methods of killing. On the one hand, killings with weapons or in cruel and unusual ways were either murder, when done with deliberate design (premeditated design or malice), or manslaughter, when committed in a heat of passion during a provoked rage or during spontaneous fights.(218) Intent to kill was apparently not important for homicides committed with weapons, and there was no statutory defense of accident or excuse for such killings.(219) On the other hand, for barehanded killings intent was crucial, and the defense of accident and misfortune was available.(220)
The statute thus broadly criminalized killings that were prohibited under the old English manslaughter act (a counterpart of which had previously been codified in Mississippi) that prohibited killings with daggers and swords.(221) The generous excuse for provoked barehanded killings dispensed with the common law doctrine, still followed by many states, that death resulting from a criminal assault was manslaughter.(222) Excusable homicide explicitly extended to accidental killings resulting from lawful acts and to accidental killings resulting from provoked heat of passion or sudden combat (without undue advantage, dangerous weapon, or cruel or unusual manner). Killings by "accident or misadventure" but in an unlawful manner, or without provocation, or during combat but with a weapon were not excused. Whether an assailant meant to kill, wound, or merely frighten in the midst of a fight became legally unimportant. The elimination of special requirements of intent in hot-blooded killings anticipated sociological observations made over a century later that even the most notoriously intentional homicides express deeply conflicted motivations.(223)
There were further changes to this text after 1857 as follows:
1857 text--"[B]y accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation; or upon any sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner."(224)
Recodified text in 1871-1892--"[B]y accident and misfortune, in the heat of passion . . . , or upon any sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner."(225)
Recodified text 1892--"(b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation; (c) When committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner."(226)
These changes to the text were probably meant to clarify the language and not to change the substantive legal requirements. In Wood v. State, the supreme court construed the law of excusable homicide under the 1880 Code, disregarded the disjunctive "or" in the statute, and assumed that excusable homicide required the absence of a dangerous weapon for both provoked and sudden combat killings.(227) In that case the victim allegedly called the defendant a "damn liar" and struck him with a board.(228) The defendant then stabbed the victim.(229) The defendant requested an instruction that killing was excusable when by accident and misfortune, in a heat of passion, and upon a sudden quarrel.(230) The court affirmed the denial of the instruction maintaining that it "would not be correct in any case where death resulted from the use of a deadly weapon."(231)
Whether or not this approach corresponded to the original purposes of the legislature, the supreme court in later cases relied heavily on the phrasing of the revised statute and the absence of language of "without a dangerous weapon" in subsection (b).(232) It has not yet similarly relied on the corresponding absence of language of "accident and misfortune" in subsection (c) but has instead recognized the general availability of subsection (a) (accidental killings during lawful acts) to killings with weapons.(233) In a 1996 case where an estranged husband shot and killed his wife and later claimed they were fighting for possession of his handgun, the court reversed a murder conviction where requested instructions on accident and misfortune were omitted.(234) Although the court needed only to decide that an accidental killing during a lawful act was excusable homicide, which had been settled law since 1839, it proclaimed far more broadly from "clear language of the statute" that "the only time a homicide cannot be excusable when a dangerous weapon is used is when it takes place during sudden combat."(235)
A few other cases suggest the continuing validity of the rule that a killing (with or without a dangerous weapon) during an unlawful act is manslaughter.(236) In such cases the omission of a defense instruction on accidental homicide is proper, but in general, accident and misfortune provides a defense in shooting deaths as in any other kind of case, and the omission of appropriate instructions is reversible error. Accordingly, the prosecution may have to refute a claim of accident and misfortune in order to prove manslaughter.(237)
The current confusion is expressed in a model instruction that provides for a complete defense where the jury finds the defendant "without any design or deliberation to cause the death of [deceased's name] had possession of a pistol, and in the heat of passion in a struggle between [deceased's name] and [defendant's name], the fatal shot was fired accidentally and through misfortune, upon any sudden and sufficient provocation."(238)
Aggravated DUI. Unintended killing constitutes aggravated DUI when the defendant satisfies the elements of driving while intoxicated and causes death in a negligent manner.(239)
II. Unintentional Criminal Homicide in
A. States and Federal Government
Today most states and the federal government recognize some form of extreme recklessness as providing a sufficient culpable mental state for murder.(240) Statutory schemes vary in defining such murders as killings with "malice"(241) or "implied malice,"(242) and in describing the accompanying mental states as "`a depraved mind regardless of human life,' `an abandoned and malignant heart' and `a heart regardless of social duty and totally bent on mischief.'"(243) More recently, under the influence of the Model Penal Code (discussed in Part II(B)), some states have defined this kind of murder in terms of recklessness and extreme indifference.
A common problem for jurisdictions that treat some unintended killings as murder is distinguishing the culpable mental state required for unintentional murder from that, often characterized as culpable or criminal negligence, required for involuntary manslaughter or other forms of unintentional criminal homicide.(244) In general, extreme recklessness required for murder is said to require a very high degree of risk of death or serious bodily injury(245) or a great indifference to the value of human life.(246) Jurisdictions are split over whether the defendant must also be subjectively aware of the risk, though scholars express a preference for actual subjective awareness.(247)
B. Model Penal Code
The American Law Institute began work on the Model Penal Code in 1952. Adopted finally in 1962, the code influenced revisions of criminal statutes in at least thirty-four states.(248)
The adjacent states of Alabama, Tennessee, and Arkansas have been significantly influenced by the Model Penal Code in revising their homicide statutes.(249) But Mississippi homicide laws have not been amended in the wake of the Model Penal Code, nor has the Model Penal Code had much other effect on criminal jurisprudence in the state. Exceptions are the aggravating and mitigating circumstances for capital punishment, which Mississippi borrowed from the Model Penal Code,(250) and the crimes of simple and aggravated assault.(251)
The Model Penal Code defines murder to include killings done purposely or knowingly.(252) Murder also includes certain unintentional killings: "[C]riminal homicide constitutes murder when . . . it is committed recklessly under circumstances manifesting extreme indifference to the value of human life."(253) The code's drafters, assuming that the common law doctrine of implied malice embraced certain unintentional killings, generalized that "the essential concept was one of extreme recklessness regarding homicidal risk."(254) The code requires actual subjective awareness of risk in its definition of the operative mental state, "recklessly," by stating: "A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct."(255) Hence, "inadvertent risk creation, however extravagant and unjustified, cannot be punished as murder."(256)
The Model Penal Code also defines reckless conduct to impose the objective requirement that the risktaking deviate significantly from the community's standards: "The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation."(257) The drafters settled their disagreements over felony murder by inserting into the elements of extreme recklessness murder an evidentiary rule permitting an inference of extreme recklessness when the defendant is committing or attempting to commit certain serious felonies or is fleeing after committing or attempting to commit them.(258)
The Model Penal Code defines its version of involuntary manslaughter as criminal homicide "committed recklessly."(259) The drafters recognized that, due to the definition of "recklessly," this represented a substantial innovation, both requiring the creation of a particularly high degree of risk and eliminating "all forms of negligence, in the sense of inadvertent risk creation."(260)
3. Negligent homicide
Recognizing that the code's definition of manslaughter excludes cases of unconscious risktaking that were widely punished as manslaughter at common law,(261) the Model Penal Code proposes a new crime of negligent homicide to punish killings "committed negligently."(262) The code's definition of negligence does not require actual awareness of risk but denotes conduct that is more extreme and blameworthy than civil negligence. It requires that the risk of which the person "should be aware" is both "a substantial and unjustifiable risk" and that the risk be of "such nature and degree that the actor's failure to perceive it . . . involves a gross deviation from the standard of care that a reasonable person would observe."(263)
The Model Penal Code punishes unintended killings as murder, manslaughter, or negligent homicide when the death results from the disregard of a substantial and unjustifiable risk of death. The risktaking must evidence a gross deviation from the standard of care followed by law-abiding persons (for murder and manslaughter) or by reasonably prudent persons (for negligent homicide). If the actor is not aware of the risk, the liability is limited to negligent homicide. If the actor is aware of the risk, liability exists for manslaughter. If the actor is aware of the risk and also manifests extreme disregard for the value of human life, the homicide is murder.
The appeal of the Model Penal Code's ingenius drafting obscures two pervasive problems. First, its emphasis on subjective awareness or risk has limited consequences in practice because the factfinder must infer such awareness from objective aspects of conduct. In making judgments about awareness the factfinder may be influenced by factors ranging from the actor's age to his or her race. Defining elements of a crime in subjective terms appears to promote justice by linking the severity of punishment to the actor's mental state.(264) But because of judicial deference to factfinding, it also effectively shields convictions from appellate scrutiny for consistency.
Second, the code's emphasis on awareness may fail to describe appropriately the psychological dynamics involved in risktaking. Many deaths result from high risk conduct where the actors claimed not to anticipate the fatal results yet were motivated by the thrill of risk of injury or death. The difficulty in determining whether the actor was "aware" of a risk and "consciously disregarded it" may not be a problem of evidence as much as a problem of recognizing that "awareness" does not correspond to the wilful denial of responsibility often displayed in the cases.
III. Mens Rea for Unintentional Murder
A. Depraved Heart Murder
1. Language of the Statute
The statute governing unintended murder qualifies both the act and the accompanying mens rea. First, the killing must occur "in the commission of an act eminently dangerous to others." Second, the act must be one "evincing a depraved heart, regardless of human life."(265) The statute makes it explicit that no intent or premeditation is required by adding "although without any premeditated design to effect the death of any particular individual."(266)
Eminently dangerous. No opinions define the meaning of an "act eminently dangerous," and the court has never held that it is error to instruct the jury in language drawn from the statute without further clarification as is routinely done.(267) The court has approved an instruction on deliberate design murder employing the statutory language over an objection that the language stated "an abstract legal definition."(268) But the meaning of an act "eminently dangerous" may be less obvious to a jury than "deliberate design."
The meaning of such an act is certainly far from obvious to the court. The plain meaning of the constituent words of the statute is obscure because the statute possibly employed the wrong words. "Eminently" may be a malapropism for "imminently." While "eminently" means famously or conspicuously, it also operates generally as an intensifier like "especially" or "notably."(269) "Imminently," in contrast, connotes the quality of being immediately impending or threatening.(270)
An "eminently dangerous" act would be one that is openly and widely perceived as dangerous. An "imminently dangerous" act would be one that presents an immediate risk of harm. Classic examples of implied malice, such as shooting into a crowded room and throwing a heavy object from a roof in London onto a crowded street(271) represent acts that are no doubt both eminently and imminently dangerous. But in many cases the immediacy of danger does not coincide with its obviousness. Giving a small child access to a firearm might be eminently dangerous yet present no imminent risk of harm. Selling improperly stored meat might be imminently dangerous but not eminently so.
"Eminently" may be exactly what the legislature meant, but more recent legal authorities render the term of art as "imminently dangerous."(272) A number of opinions by the supreme court tacitly correct the language of the statute to require an act imminently dangerous. Justice Hawkins concluded: "My guess is that the authors meant `imminently' rather than `eminently' dangerous to others. `Imminently' suggests something that is likely to occur at any moment. The word `eminently,' however, has been in this code section at least since 1848."(273) The actual meaning of the words has not affected the development of the law.
Intent to kill. The supreme court has repeatedly held in the past decade that an act eminently dangerous to others and evincing a depraved heart regardless of human life includes intentional homicide.(274) In other words, the state does not have to prove the absence of "premeditated design," and homicides under section 97-3-19(a) with "deliberate design" and unintended killings covered by section 97-3-19(b) are not mutually exclusive categories. Instead, the former are included within the latter, for "[a]s a matter of common sense, every murder done with deliberate design to effect the death of another human being is by definition done in the commission of an act imminently dangerous to others and evincing a depraved heart, regardless of human life."(275) Accordingly, the supreme court affirmed a muder conviction for a stabbing death where the jury was instructed both on deliberate design and depraved heart murder,(276) and the court of appeals affirmed a murder conviction obtained with a depraved heart instruction in a case where the defendant apparently shot the victim with intent to kill.(277)
Malice. Older cases held that all murder requires malice, notwithstanding the absence of that term from the statute, and that the failure to instruct on malice was reversible error.(278) Moreover, a statute permits (but does not require) all murder indictments to charge malice.(279) But malice has come to denote the mens rea required for deliberate design murder; and "malice aforethought," "deliberate design," and "premeditated design" have become synonyms.(280) Where a malice instruction is given, older authority suggests that it is "unnecessary and unwise to attempt to define malice."(281) But because malice does not mean what an uninstructed reasonable person would assume, and because express malice does not apply to depraved heart murder, it would be far better to omit a malice instruction in all murder prosecutions, especially in depraved heart murder cases where it is not required under any name.(282)
Dangerous to others. There is no requirement today that the act dangerous to "others" create risks to more than one person.(283) The supreme court has declared: "An act which poses a risk to only one individual and which results in that individual's death may also be deemed depraved heart murder."(284)
This proved controversial with two justices taking the position that an act "eminently dangerous to others" was meant to apply only to conduct creating threats of injury to groups. Justice Hawkins relied in part on the plural "others" in protesting the application of this statute to a woman who killed her child.(285)
But the real concern of the dissenters was not that a risk of injury to one person was less blameworthy. After all, shooting once into a crowded building threatens only one life. Rather, they were alarmed at the reduction of proof this permitted in killings where there was only one victim. As Justice Banks explained, conduct directed at a single individual previously required sufficient evidence to persuade the jury that the actor killed with deliberate design.(286) Because no such design or malice is inferred where no specific victim is targeted, Justice Banks reasoned that the depraved heart statute was intended to cover a different category of cases.(287) Moreover, the design equated with malice could be negated by the presence of provocation under the circumstances that constitute voluntary manslaughter.(288) But such circumstances might not prevent a jury from finding a depraved heart.
While Justice Banks was probably right that the difficulty of inferring malice was a key motive for separately defining murder by reference to acts eminently dangerous to others, he did not persuade the court that the two forms of murder must be considered mutually exclusive. Though Justice Robertson was not concerned that depraved heart murder could preempt mitigation to manslaughter,(289) Justices Hawkins and Banks rightly insisted that such preemption might undermine the distinct levels of homicide liability envisaged by the legislature.(290) The problem arises because Mississippi authority has long explained mitigation of hot-blooded killings by the theory that provoked impulsive (but intentional) killings do not stem from the cooler, more sedate "deliberate design" required for murder.(291) On this theory provocation only negatives intent, not other forms of malice. Because a depraved heart killer need have no intent at all, provocation would not prevent a jury finding of murder. The court's extension of depraved heart murder requires a significant adjustment to the voluntary manslaughter instructions in order to preserve the jury's power to mitigate hot-blooded killings to manslaughter. While the supreme court has been alerted to this real problem, it has, unfortunately, not yet resolved it.(292)
Depraved heart regardless of human life. The statutory phrase "evincing a depraved heart, regardless of human life," must be included in jury instructions, and its omission is fundamental error.(293) Yet the meaning of this element has attracted little separate consideration by the court.(294) Justice Robertson has suggested that the phrase "depraved heart" may have no meaning at all:
I take it that no one will dispute that the phrase must be seen a metaphor, a euphemism, regarding the actor's cognitive, not cardiac, function. I am open to the suggestion otherwise, but I do not see that it says anything of consequence independent of "eminently dangerous to others" and "regardless of human life.(295) As previously suggested,(296) murder as defined in section 97-3-19(1)(b) was probably meant to capture cases of implied malice--cases where the evidence of motive (malice or hate) was supplied not by direct evidence of deliberate killings but by inferences drawn from the extreme dangerousness of the act, coupled with the actor's disregard of human life. If so, Justice Robertson's speculation seems warranted, and the reference to "depraved heart" probably was meant to state a conclusory characterization of the killer rather than to provide an additional element. It is uncertain whether the element "regardless of human life" means that the killer must have contemplated and disregarded the possible fatal consequences of his or her acts.
Nothing in the depraved heart murder statute distinguishes between methods of killings. Nevertheless, the supreme court has been more receptive to prosecutions where deadly weapons have been used, though it has not consistently permitted an inference of extreme dangerousness from that cause of death alone. While other jurisdictions have approved murder convictions where extremely reckless drivers caused death,(297) no case in Mississippi has yet resulted in depraved heart murder liability for a driving fatality. Indeed, as discussed below in part B(2), the court was initially reluctant even to impose culpable negligence manslaughter liability in such cases.
Killings with deadly weapons. With the absorption of deliberate design by depraved heart murder,(298) the question arises whether evidence that a death was caused by the discharge of a deadly weapon is sufficient without more to support a conviction of depraved heart murder. In theory, the intentional discharge of a deadly weapon should provide sufficient evidence of a depraved heart because the intentional use of a deadly weapon provides sufficient evidence of malice or deliberate design.(299) Even before the merger of deliberate design and depraved heart murder, the supreme court found that the facts of a typical extreme recklessness case, like shooting into a crowded car with intent to frighten, provided sufficient evidence of deliberate design murder.(300) But the supreme court's treatment of the permissible inference of intent is inconsistent. On the one hand, it has emphasized for over 150 years that juries should not be instructed that they should presume or infer malice or deliberate design, and it has held that such instructions constitute reversible error.(301) On the other hand, in its readiness to affirm murder convictions where voluntary manslaughter instructions have been omitted, it has gone far towards suggesting that the permissible inference of deliberate design must be countered by compelling evidence of heat of passion or imperfect self defense.(302) Though this confusion will arise most often in intentional murder cases, it may also arise where a defendant argues both that he did not mean to discharge a weapon and did so while in a heat of passion.
Accordingly, absent mitigation by voluntary manslaughter, deliberate use of a deadly weapon normally provides sufficient evidence of an act eminently dangerous evincing a depraved heart regardless of human life.(303) Though the evidence is sufficient to support a jury finding, it is nevertheless reversible error to instruct the jury that they may infer a "depraved heart regardless of human life" from the acts causing death.(304)
The court has repeatedly held that an unjustified deliberate discharge of a firearm towards or into a crowd of persons is sufficient evidence of murder based on an act eminently dangerous to others and evincing a depraved heart regardless of human life.(305) At the same time there is some authority that not every death resulting from a careless or unlawful discharge of a deadly weapon may be criminal homicide of any sort, let alone murder. In Dixon v. State, a drunk man fired a handgun at the ground, but the bullet struck a tin can, ricocheted, and killed a woman standing nearby.(306) Even though the shooting violated three misdemeanor statutes, the court reversed a manslaughter conviction where the trial court had refused to instruct that death must be the natural or probable result.(307) It suggested in dictum that to constitute depraved heart murder there must be a close causal connection between the reckless act and the death, and the act must be something more than a legal violation, it must be "essentially evil."(308)
The cases are flatly inconsistent when the evidence is inconclusive with respect to whether a firearm was voluntarily discharged or deliberately aimed towards a person or group of persons. Thus the supreme court affirmed a murder conviction where a defendant recklessly handled a handgun, pointed it at a victim, and fired it.(309) According to witnesses, although the defendant had been warned of the danger of the weapon, he made a statement that somebody might get shot, yet said immediately before firing that the gun "ain't loaded."(310) Though the court remarked that "we would be better satisfied had the conviction been for manslaughter," it held that the evidence was sufficient for murder: "The evidence showed, and the jury manifestly believed it, that [the defendant] was indifferent as to the consequences of his acts, and disregardful of the safety of others, and did not care what the consequences were."(311)
This would seem to support the conclusion that the creation of risks evidenced by the discharge of a handgun at point blank range, the playing of "Russian roulette," or shooting over someone's head would provide sufficient evidence to support a jury verdict of depraved heart murder.(312) In a well known Pennsylvania case, a seventeen-year-old boy shot a friend, believing that the single armed chamber in a revolver was not in firing position. When the gun fired, he proclaimed, "Gee, Kid, I'm sorry."(313) The Pennsylvania Supreme Court affirmed a murder conviction finding that the defendant's conduct exhibited "gross recklessness for which he must reasonably anticipate that death to another is likely to result."(314) Such facts probably also support extreme recklessness murder under the Model Penal Code.(315)
Nevertheless, one Mississippi Supreme Court decision suggests that a point blank shooting may not provide sufficient evidence of depraved heart murder. In Tait v. State, a defendant cocked a handgun, held it to a friend's head, and the gun went off while the two were "joking around and horseplaying."(316) Witnesses summoned police, and when the police arrived, the defendant was holding the victim in his arms, sobbing "I killed him. Oh, my God, I killed him. I shot him."(317) Though the defendant did not testify or request an involuntary manslaughter instruction, the court held the evidence insufficient as a matter of law to support a jury verdict of depraved heart murder, and it rendered a verdict of manslaughter.(318)
The court conceded that the expansion of depraved heart murder to reckless acts directed towards one person "would seem to include the defendant's act of pointing a gun at the victim and pulling the trigger."(319) Nevertheless, it placed extraordinary weight on the evidence of the defendant's remorse to conclude that the shooting was accidental: "Tait's conduct of falling to the ground and crying following the shooting could be considered as consistent with an accident. In addition, there was no testimony indicating that the gun was the defendant's, that he knew it was loaded, or that he pulled the trigger."(320)
This extraordinary characterization of the evidence overlooked the defendant's own admission that, "I killed him . . . I shot him" and his concomitant failure to protest that the killing was an accident. The court also did not acknowledge the relevance of the presumption that actors intend the natural and probable consequences of their acts. The most troubling aspect of the case, however, was the court's assumption that an accidental shooting was incompatible with depraved heart murder. In making this assumption the court confused the mental state of intent required for deliberate design murder, which is negated by genuine accident, and the mental state required for depraved heart murder, which has never required intent to kill, and which, therefore, should not be negated by accident.
The question in depraved heart killings is not whether the death was accidental or unintended, but rather the degree of recklessness that caused the accident. Accepting the facts as the court described them, the defendant held a revolver to the victim's head, did not determine whether the gun was loaded, cocked the hammer, and after the gun fired in the presence of witnesses, expressed surprise and remorse.(321) To find such evidence insufficient would eliminate depraved heart murder in most, if not all, cases that do not contain evidence of hostile motive satisfying the traditional criteria for deliberate design murder.
The holding in Tait is accordingly inconsistent with the legislative purposes in criminalizing depraved heart murder. The decision's retrospective, tendentious characterization of facts is incompatible with the court's prevailing practice of leaving the determination of an actor's mens rea to the jury.
Moreover, the Tait holding seems flatly inconsistent with other recent decisions. In Blanks v. State, the defendant admitted shooting and killing a high school friend but denied the shooting was intentional.(322) The killing was not witnessed, and the defendant concealed the body.(323) Although the jury convicted of manslaughter, not depraved heart murder, the supreme court insisted that there was no error in indicting and instructing for depraved heart murder, and it even concluded that the evidence was sufficient to support a depraved heart murder conviction, notwithstanding the defense claim of accident.(324) The dictum in Blanks is preferable to the result in Tait in that Blanks would leave the determination to the jury.(325) Nevertheless, the reasoning in Blanks is questionable to the extent it suggests that accident might provide a defense to depraved heart murder. The court focused heavily on post-accident evidence to rebut the claim of accident, emphasizing the defendant's efforts to conceal the crime. "[The defendant's] conduct and statements following the killing were not consistent with that of a person who has accidentally killed a friend."(326) The weight of such evidence is debatable because the defendant, after concealing the crime, revealed himself as the killer.(327) More to the point, the court should have held that an accident resulting from sufficiently reckless conduct does not excuse or mitigate murder liability.(328)
The court's analysis of inferences in Blanks suggests there was sufficient evidence even of deliberate design murder. In such a case, of course, the jury must conclude that the killing was not accidental. But for depraved heart murder, the jury verdict should be affirmed even if the killing was unintentional where the killer created risks of death through an act eminently dangerous that evinced a depraved heart regardless of human life. On the one hand, the post accident concealing of the body that might support an inference of intent to kill based on a theory of consciousness of guilt should equally support an inference of such extreme recklessness and indifference. On the other hand, the direct evidence of remorse in a case like Tait should be given to the jury, and the absence of efforts to conceal or deny should be accorded no weight in that case since the killing was observed. The witnesses amply described the objective circumstances of risktaking and the defendant's response to the accident, thus avoiding the need for any evidentiary inference.(329) And the presence of witnesses eliminated the motive and opportunity for concealing the crime.
The latest word from the court, Clark v. State, seems generally consistent with dicta in Blanks and inconsistent with the result of Tait, though Justice McRae mentioned neither of those decisions in writing the opinion for the court.(330) The killing in Clark occurred during a domestic dispute during which the victim locked herself in an office.(331) The defendant retrieved a shotgun from his car and "shot the door several times in an attempt to enter the room. The shots hit [the victim] at close range and killed her."(332) The jury was instructed on murder and voluntary manslaughter.(333) It was not instructed on culpable negligence manslaughter, despite a defense request.(334)
The supreme court held the evidence sufficient to support a depraved heart murder conviction even though the victim was locked behind a steel door and the defendant claimed he had no intent to kill her.(335) The court emphasized that "in a `depraved heart' murder, malice can be inferred from the circumstances if the actions involved a very high degree of carelessness evincing a reckless indifference to the danger to human life."(336) The result is clear: shooting repeatedly through a door with a shotgun knowing there is a human being on the other side is criminally reckless enough to support a murder conviction. Unfortunately, the court proceeded to explain this result in terms of "malice," reasoning that "[m]alice too may be inferred when such a high degree of recklessness is involved."(337) The court held further that the requested culpable negligence manslaughter instruction was properly refused because the extreme recklessness displayed by the defendant could only be malice and thus support depraved heart murder and not culpable negligence.(338) "Looking at the evidence in a light most favorable to [the defendant], as well as all reasonable inferences which may be drawn therefrom, a reasonable jury could not have found him guilty of mere culpable negligence."(339)
In other words, while Tait held that a jury erred as a matter of law in finding an unintended shooting death to be depraved heart murder, Clark held that a reasonable jury could not find an unintentional shooting death to be culpable negligence because it could only be depraved heart murder. Blanks points the way out of this dilemma. In Blanks, an unjustifiable and unexcusable shooting death was found to provide sufficient evidence for manslaughter based on culpable negligence, murder based on depraved heart--and possibly even murder based on deliberate design.(340) The court held that where the jury was properly instructed on all applicable homicide offenses and its verdict was supported by adequate evidence, its verdict should not be disturbed on appeal.(341)
From Blanks it follows that facts presenting sufficient evidence of depraved heart murder also present facts that would support a verdict of culpable negligence manslaughter. In order for the jury to determine whether the recklessness is so aggravated as to rise to depraved heart murder, the jury in unintentional homicide cases should be given instructions permitting convictions for either crime. In depraved heart murder cases where there is a fact question of sudden combat or provocation, the court should also instruct on voluntary manslaughter, as it did in Clark.(342)
In Dowda v. State, the defendant placed a gun to the victim's head and pulled the trigger.(343) The defendant had previously removed the clip from the gun, and the judge who tried the case without a jury specifically found that the defendant mistakenly believed the gun was unloaded.(344) The court nevertheless convicted the defendant of depraved heart murder.(345) The court of appeals, without citing any supreme court decisions on point, held that the belief that the gun was unloaded did not prevent depraved heart: "The legal conclusion reached by the trial judge was sound--a person's pulling the trigger on a weapon that has been placed against another's head, even when the first person believes the gun to be unloaded, can nonetheless be an act that is in utter disregard for life."(346) Two judges dissented, arguing that a mistaken belief that the gun was unloaded failed to establish depraved heart murder.(347)
Killings without deadly weapons. Although the cases have not worked up any precise rule, it appears that unexpected deaths resulting from simple assaults may not support even manslaughter liability(348) while unexpected deaths resulting from assaults accompanied by an attempt to inflict serious injury are sufficient evidence of depraved heart murder. Therefore, evidence that a defendant struck a victim "several times with a large stick," including on the head, was sufficient to sustain a depraved heart murder conviction.(349) Evidence of extensive blows to the head from which the victim died was sufficient to support a verdict of depraved heart murder,(350) as was evidence that an adult defendant kicked a four-year-old in the stomach and hit her in the head repeatedly, inflicting severe injuries from which she died.(351) Causing death by an assault with a hammer was likewise sufficient to support a murder conviction based on a theory of depraved heart:(352)
Lack of intent notwithstanding, [defendant's] use of a hammer to assault a 79-year-old, one-armed man (who was running away) and his 78-year-old wife may, at the very least, be described as grave recklessness manifesting utter disregard or indifference to the resultant creation of eminent [sic] danger to the life of both [victims].(353) In a case where a mother allowed her severely retarded daughter to die of starvation and thirst, the court was divided.(354) A majority agreed to reverse a murder conviction, but only a plurality supported the conclusion that the evidence was sufficiently ambiguous that the conviction of depraved heart murder should be reversed and remanded for a second trial.(355) (Three justices concurred, but on the ground that depraved heart murder should not apply to killings of individuals,(356) and two justices dissented because they found the evidence sufficient.(357)) In concluding that the evidence was inadequate, the plurality placed great weight on the extreme difficulty posed by the victim's medical condition and by the record of the defendant seeking medical help on more than a dozen occasions prior to the death:(358)
The [defendant] . . . could not give the requisite care in this unusual situation. . . . We should not hold the defendant to a standard of care that she could not give and a standard of care that even professionals only talked about but could not give permanently and a standard of care that was not available to the defendant even through charitable or government agencies.(359)In remanding, the plurality also concluded that the jury should be instructed on culpable negligence manslaughter at retrial.(360)
B. Culpable Negligence Manslaughter
1. Language of the Statute
The mens rea required for Mississippi's version of involuntary manslaughter is "culpable negligence."(361) The terminology of "culpable negligence" was borrowed from civil law and had no fixed criminal meaning when it was first adopted.(362) Over time different jurisdictions have variously explained its meaning, and the supreme court once remarked that "culpable negligence . . . is an undefinable phrase,"(363) though it is not unconstitutionally vague.(364)
It was recognized at common law that the carelessness necessary for manslaughter was greater than that required for tort liability.(365) The Mississippi statute was probably intended to do little more than codify the common law, subject to the modifications expressed in other statutes.(366) Cases have held that it is reversible error to give instructions that confuse culpable negligence with either ordinary negligence(367) or gross negligence.(368)
2. Judicial Elaboration
Mississippi cases have defined culpable negligence narrowly as "the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the wilful creation of an unreasonable risk."(369) Such negligence expresses "wanton disregard of, or utter indifference to, the safety of human life."(370) This judicial definition materially supplements the statute, and an instruction so defining culpable negligence must be given.(371) When both depraved heart murder and culpable negligence manslaughter instructions are given, culpable negligence must not be defined as equivalent to "willfulness," because doing so blurs the distinction between murder and manslaughter.(372)
This restrictive formulation of culpable negligence apparently first emerged in early twentieth-century opinions that expressed judicial concern with the over-application of manslaughter to the growing number of automobile deaths. The court was convinced that "juries are overinclined to convict [in car accident cases] on proof of what is in fact no more than simple negligence."(373) But notwithstanding the language required in jury instructions, it is questionable whether culpable negligence manslaughter requires strict proof of subjective indifference to the safety of human life.(374)
The statute does not distinguish between different methods of causing death, and the supreme court has emphasized that the same standard for culpable negligence applies, regardless of the instrumentality inflicting death.(375) Nevertheless, it is useful to consider the application of culpable negligence in different classes of cases.
Motor vehicle fatalities. Culpable negligence while driving a motor vehicle has been found to support manslaughter liability in many cases where the defendant's carelessness exceeded ordinary negligence.(376) In a 1927 accident, a bus driver was speeding and driving carelessly while flirting with a woman who was sitting next to him.(377) The court affirmed a manslaughter conviction based on culpable negligence where the bus driver crossed into the wrong lane and collided with the victim on a curve.(378) The court has also held that unlawful racing may constitute culpable negligence and has held that both drivers may be liable for manslaughter when either driver collides with an oncoming vehicle.(379)
But the supreme court has also expressed some reluctance to find culpable negligence based on careless driving alone or upon a violation of rules or statutes,(380) including the criminal prohibition of driving while intoxicated.(381) In Ducking v. State, a school bus driver ran over and killed a six-year-old child who had gotten off the bus and was crossing the street in front of the bus.(382) At the time of the accident, the defendant had been instructed not to drive the bus; he was driving the route in the wrong direction, thus requiring children to cross the street; and he failed to count the children to verify that they had crossed the road.(383) Nevertheless, the court reversed a manslaughter conviction and concluded that the defendant's acts of carelessness "amounted to simple negligence, but under no stretch of the imagination could they be termed criminal or culpable negligence."(384)
Many cases have found that evidence of intoxication plus dangerous acts is sufficient to support a conviction of culpable negligence manslaughter.(385) But the cases are not entirely consistent, and the appellate courts occasionally narrowly scrutinize facts to find insufficient evidence of culpable negligence. For example, in Evans v. State, the defendant collided with a stalled car that was being moved off the road.(386) The defendant had drunk at least five cans of beer before the collision, appeared visibly intoxicated at the scene of the accident, and apparently took no action to avoid the collision.(387) The court emphasized that drinking alone did not support a finding of culpable negligence,(388) and it found no additional evidence of culpable negligence, though it concluded that the evidence supported a conviction of the "lesser included offense of negligently killing another while under the influence of intoxicating liquor."(389)
Such cases are likely to be rare now that the offense of aggravated DUI for causing deaths negligently while driving under the influence of intoxicants is both more easily proven (without the need for culpable negligence) and can result in a more severe penalty than manslaughter.(390) Prosecutors will have strong incentives to charge that crime rather than manslaughter where deaths result from drunk driving.
Simple assault. The supreme court has held that evidence of an assault including five or six open-handed blows was sufficient to support a conviction of manslaughter.(391) In addition, the supreme court affirmed a manslaughter conviction where an inmate struck a fellow inmate twelve times in the chest as part of a gang initiation, despite the victim's supposed consent to the assault.(392) In contrast, the court of appeals has maintained that a simple assault resulting in an unexpected death does not rise to the level of culpable negligence.(393) Hence it found that a barehanded blow to the neck that resulted in death was not sufficient evidence of culpable negligence.(394) The court of appeals nevertheless suggested that involuntary manslaughter liability might result from the fact that death occurred during the commission of a misdemeanor assault.(395)
Aggravated assault and killings with deadly weapons. Because homicides resulting either from a deadly weapon or from an aggravated assault generally support a conviction of depraved heart murder,(396) and because the mens rea for depraved heart murder differs from that required for culpable negligence manslaughter only in that it involves a higher degree of recklessness,(397) it follows that an aggravated assault or reckless shooting should provide sufficient evidence of culpable negligence. The cases are in accord that inflicting a fatal wound with a dangerous weapon supports an inference of culpable negligence, though the courts have never expressly so stated.(398) The supreme court has affirmed manslaughter convictions where a child died as a result of severe beatings and cuttings(399) and where a man died as the result of a severe beating.(400)
The supreme court has repeatedly affirmed culpable negligence manslaughter convictions resulting from shooting deaths.(401) It observed in a case where a defendant aimed a loaded gun at his nephew during a scuffle:
It is hard to conceive of a clearer cut demonstration of what is termed "culpable negligence" than for a person to point, aim, and discharge a loaded pistol at another; and, where this negligence results in the death of the human being at whom the pistol is pointed, the crime of manslaughter is completely made out and established.(402)Even where the victim allegedly had displayed a knife, the court observed, "[T]he evidence is uncontradicted that [defendant] drew a gun and cocked it and aimed it at [the victim]. We regard it as well within the jury's province to consider this as a reckless indifference to human life."(403) In Tait v. State, the supreme court reversed a depraved heart murder conviction in an accidental shooting case but rendered a verdict of culpable negligence manslaughter where the defendant cocked a gun and held it to the victim's head.(404) Bringing a loaded, cocked handgun that is later discharged during a fight for possession has also been found to be culpable negligence.(405) The court of appeals affirmed a manslaughter conviction where a shooting death was the result either of a deliberate firing or the accidental firing of a handgun during a scuffle.(406)
The supreme court has repeatedly indicated that a defendant's erroneous belief that a gun is unloaded does not preclude a finding of culpable negligence.(407) But the courts do not impose strict criminal liability for shooting deaths, and an accidental shooting that involves no risktaking above ordinary negligence will not support a conviction.(408)
Culpable omissions. The supreme court has made clear that reckless neglect of a child by parents can be culpable negligence.(409) The court of appeals has been reluctant to impose manslaughter liability for neglect, even under dangerous circumstances, where the violation of a duty of care was not closely connected to the sequence of events leading to the death. A problem with this approach is illustrated by Edwards v. State, where the court reversed a culpable negligence manslaughter conviction of the parents of a four-year-old who took the child, who could not swim, camping on a sandbar on the Pearl River and then lost all track of the child.(410) The lack of details of the child's location preceding the drowning persuaded the court that evidence was insufficient to support a finding of culpable negligence.(411) Yet the evidence was vague precisely because neither the parents nor others present were paying attention.(412) The dissent argued forcefully that merely taking a child on such a trip was not culpable negligence but that additional evidence showed dangers that satisfied the standard for culpable negligence:
It was a reasonable probability and should have been anticipated that in such an environment a four-year-old child could not only fall into or enter the water but also be unretrievable for rescue and drown as a result. The [defendants] recklessly disregarded this risk and the probability of fatal consequences to their child as a result of their having willfully placed him in an environment that they themselves created for him.(413)Other unlawful acts. The supreme court has repeatedly held that causing death while committing an unlawful act does not alone satisfy the requirement of "culpable negligence."(414) Moreover, it has emphasized that there must be a close causal connection between the dangerous act and the resulting death.(415)
Nevertheless, the court of appeals concluded in Miller v. State that a barehanded blow that unexpectedly caused death but that did not itself evidence culpable negligence might be manslaughter under the statute.(416) The court of appeals reasoned that section 97-3-47 was meant to codify common law involuntary manslaughter, and it observed that common law manslaughter liability arose when death resulted either from an illegal act or from culpable negligence.(417) The court of appeals followed a similar approach in Towner v. State, where it held that regardless of intent, the firing of a concealed gun was unlawful and the resulting death "at least" manslaughter, because it occurred as the result of an unlawful act.(418) The court of appeals was probably right as to the doctrine of manslaughter at common law and partially right as to the original meaning of the statute. In returning to the age of Blackstone, however, the court of appeals overlooked both the original 1839 statutory scheme, which excluded homicide liability for unintended barehanded killings,(419) and the restriction of the statute by authoritative supreme court interpretations to killings with culpable negligence.(420) Accordingly, those decisions finding manslaughter established by an unlawful act not otherwise culpably negligent should be regarded as aberrational.
IV. The Confusion of Mens Rea for Murder
The history of the common law classification of murder and manslaughter suggests an important difference between the levels of culpability required for the two crimes. This is confirmed by the significant difference in punishment. In Mississippi, capital murder is punishable by death;(421) murder by life imprisonment;(422) and manslaughter by up to twenty years imprisonment.(423)
Nevertheless, a searching review of appellate decisions reviewing murder and manslaughter convictions for unintentional killings fails to reveal a coherent distinction between the mens rea required for murder and that required for manslaughter. The supreme court's efforts to define culpable negligence have successfully differentiated the mens rea required for manslaughter from the carelessness sufficient for civil tort liability. But those efforts have only served to confuse the relationship of the culpable negligence required for manslaughter and the act eminently dangerous and evincing a depraved heart required for murder. The judicial definition of culpable negligence as requiring "conduct evincing a reckless disregard for the value of human life or the conscious or wanton disregard of, or utter indifference to, the safety of another"(424) closely approaches the language of the statute defining depraved heart murder.
This failure to articulate different standards for murder and manslaughter produces two undesirable results. First, because jury instructions are either inadequate or confusing, they encourage differing verdicts in similar cases. Because the substantive legal standard is not clear, it is not subject to uniform application by appellate courts, and the appellate decisions reviewing jury verdicts are likewise inconsistent. Second, the appellate decisions regarding the need and desirability of appropriate instructions are in conflict.
A. Inconsistent Evaluations of Evidence
The inconsistent treatment of unintentional killings by both juries and appellate courts is particularly clear in the reported decision of cases since 1988 involving unintended shooting deaths. In Wheeler v. State, the defendant fired a handgun repeatedly while fighting police for possession of it.(425) The jury convicted the defendant of capital murder.(426) The supreme court affirmed a murder conviction but narrowly overturned a capital murder conviction.(427)
In Clark v. State, the defendant shot through a locked steel door during an argument, killing the victim.(428) The jury convicted of murder, and the supreme court affirmed.(429) It further held that omission of a requested instruction on culpable negligence manslaughter was not error because the evidence was insufficient to support a finding of culpable negligence.(430) In Blanks v. State, where the defendant claimed he shot and killed by accident, the jury convicted of manslaughter but not depraved heart murder.(431) In affirming, the supreme court found no error in prosecuting the homicide as murder and concluded the evidence was sufficient to sustain either a murder or manslaughter conviction.(432)
In Tait v. State, where the defendant held a cocked gun to the victim's head, the jury convicted of murder.(433) But the supreme court reversed, holding these facts inadequate as a matter of law to support murder.(434) In Towner v. State, the jury convicted of manslaughter where the shooting death resulted either from deliberate firing of a handgun or an accidental firing during a scuffle.(435) The court of appeals affirmed, holding that no accident instruction was required or proper.(436)
In these cases juries have convicted defendants who claimed shooting deaths were unintended of capital murder, murder, and manslaughter.(437) To be sure, jurors' differing resolution of issues of credibility as well as their different conclusions about risk and culpability may explain why one killing was found to be murder and another manslaughter. But appellate review of the verdicts appears no more predictable in its outcome. In these cases the supreme court has affirmed convictions of murder finding the evidence sufficient; reversed convictions of murder finding the evidence insufficient as a matter of law; rendered a verdict of manslaughter finding the evidence sufficient as a matter of law; affirmed convictions of manslaughter finding the evidence sufficient as a matter of law; and approved the omission of manslaughter instructions finding the evidence of manslaughter insufficient as a matter of law.
B. Inconsistent Law Governing Jury Instructions
Manslaughter is a lesser included offense of murder.(438) As the supreme court has explained, "Depraved heart murder and culpable-negligence manslaughter are distinguishable simply by degree of mental state of culpability. In short, depraved-heart murder involves a higher degree of recklessness from which malice or deliberate design may be implied."(439)
Accordingly, there is no error in giving instructions on both depraved-heart murder and culpable negligence manslaughter.(440) On the contrary, the supreme court has repeatedly approved giving both instructions in cases of unintentional criminal homicide in order to permit the jury, informed of different levels of culpability, to return a verdict for the most appropriate crime.(441) In such cases it has emphasized the need for careful definition of culpable negligence in order to avoid confusing the jury.(442)
From the court's reasoning, it follows that culpable negligence manslaughter instructions should be routinely given in all trials for depraved heart murder. First, a "defendant is entitled to have jury instructions given which present his theory of the case."(443) A defendant should be able to avoid murder liability for an unintentional homicide by persuading the jury that he or she was guilty of culpable negligence but lacked the depraved heart required for murder. "In homicide cases, the trial court should instruct the jury about a defendant's theories of defense, justification, or excuse that are supported by the evidence, no matter how meager or unlikely, and the trial court's failure to do so is error requiring reversal of a judgment of conviction."(444) Second, the failure to permit a jury to consider liability for a less serious offense requiring a less blameworthy form of risktaking can create strong pressure to convict the defendant of the more serious crime.(445) Depriving jurors of the option of convicting of culpable negligence manslaughter thus aggravates the risk of wrongful convictions of depraved heart murder in unsympathetic cases--and cases involving unsympathetic defendants.
Requiring lesser included offense instructions on culpable negligence manslaughter is consistent with the suggestion in an older case that a defendant prosecuted for deliberate design murder has a right to have the jury consider lesser manslaughter culpability based on culpable negligence.(446) And it is strongly supported by the more recent holding that drunk drivers prosecuted for culpable negligence manslaughter were entitled to instructions on the (then) lesser included offense of aggravated DUI.(447)
Nevertheless, the supreme court has not consistently required culpable negligence manslaughter instructions in depraved heart murder prosecutions. In Sanders v. State, the defendant struck the victim once on the head with a hammer.(448) The defendant later died.(449) The jury was instructed on both deliberate design murder and depraved heart murder.(450) The trial court refused to give a requested instruction on culpable negligence manslaughter.(451) Affirming the murder conviction, Justice Mills found no error in the failure to give the requested instruction.(452) Justice Mills apparently viewed the evidence as supporting a finding of either deliberate design or of a reckless disregard far worse than culpable negligence.(453) But in doing so, he confused the issue of whether the evidence was sufficient to support a jury verdict of murder with the issue of whether the evidence could also have supported a verdict of manslaughter. To justify omitting the instruction, he concluded that the evidence would not have been sufficient to support a finding of culpable negligence: "Viewing the evidence and all reasonable inferences therefrom, in a light most favorable to Sanders, a reasonable jury could not have found him guilty of mere culpable negligence."(454)
The court of appeals reached a similar result in Goff v. State.(455) While the defendant's wife was on a phone outside a bar, the defendant observed the victim bump into her, knock her to the ground, and call her a name.(456) She was not seriously injured.(457) The defendant followed the victim and admitted he assaulted him.(458) There was a dispute as to whether the defendant stomped on the victim's head after knocking him to the ground.(459) The trial court denied the defendant's request for a culpable negligence instruction, and the jury convicted him of depraved heart murder.(460) The court of appeals affirmed, opining that "there was no evidence to submit the case to the jury on the theory of culpable negligence, and denying the instruction was not error."(461)
The legal reasoning in these opinions defies logic, for evidence sufficient to support the greater offense must (by definition) be sufficient to support the lesser included offense. Speculation that certain risktaking is too great to be merely negligent is questionable, as it seems to rest on the premise that an intentional act having unintentional consequences cannot be culpable negligence.(462) This premise would eliminate most if not all cases of culpable negligence, since acts or omissions causing death are always preceded by intentional conduct. Moreover, the relevant manslaughter statute expressly covers deaths caused by any "act, procurement, or culpable negligence"(463) and intentional acts, including assaults, have repeatedly resulted in convictions for culpable negligence manslaughter.(464)
The results in cases like Sanders and Goff appear to be motivated by the judicial desire to save the state the inconvenience and costs of a new trial. But the courts' rationalization of these decisions has introduced theoretical incoherence into the law of jury instructions to the extent that the courts have reasoned that evidence sufficient to support a finding of depraved heart murder is insufficient to support a finding of culpable negligence. Moreover, these decisions seriously erode the role of the jury as factfinder of material elements of mens rea. A jury, properly instructed, not appellate courts, should determine the elements of the offense, including the appropriate level of culpability.
Because lesser included offense instructions materially assist the jury's determination of the appropriate mens rea, there is no good reason not to give such instructions when requested by either the state or the defendant. The supreme court should resolve all uncertainty and follow those cases approving lesser included culpable negligence instructions. It should specifically overrule Clark(465) and Sanders(466) and declare that the failure to give culpable negligence manslaughter instruction in depraved heart murder cases, when requested, is reversible error. When a defendant does not request such instruction, however, the trial court's failure may not be reversible error.(467)
In cases prosecuted on a theory of deliberate design, a lesser included offense instruction on culpable negligence manslaughter need not be given.(468) But if the state introduces alternative theories of deliberate design and depraved heart, then a culpable negligence instruction should be given.(469) For example, in Hurns death resulted from an aggravated assault during which the defendant might or might not have had the intent to kill.(470) The jury was instructed on both deliberate design and depraved heart murder but not on culpable negligence manslaughter.(471) The court affirmed the murder conviction despite the omission of a requested instruction on culpable negligence manslaughter, remarking that "evidence in this case shows intentional, not negligent, acts committed by [defendant]."(472) But the court did not explain how it could read the record on appeal to conclude that the jury had imposed murder liability under a theory of deliberate design as opposed to extreme recklessness. If the court cannot determine that a verdict was based on deliberate design, then the omission of a requested culpable negligence manslaughter instruction should be reversible error.
While Mississippi statutes differentiate between depraved heart murder and culpable negligence manslaughter, the judicial opinions construing these statutes have not coherently distinguished between the mens rea elements for murder and manslaughter. Nor have the appellate courts followed a consistent practice as to when the determination of these elements should be left to the factfinder. This has resulted in theoretical uncertainty about the relationship of depraved heart murder and culpable negligence manslaughter and in practical confusion about the evidence necessary to support convictions of either crime.
Aggravated by the courts' flagging attention to precedent, the law regulating jury instructions and appellate review of evidence in unintentional homicide cases presently fails to achieve a minimal level of coherence or to offer articulable rules of general application that can be applied uniformly by the courts. Even if the decisions are not based on such individual considerations that they are vulnerable to constitutional challenge,(473) the prevailing confusion and uncertainty is undesirable as a matter of law, justice, and policy.
A. Statutory Reform
The prevailing confusion provides an opportunity for those seeking a comprehensive revision of the state's homicide statutes.(474) One option would be to follow the Model Penal Code and other modern authority and define murder as requiring an actual subjective awareness of risk of death.(475) Legislation could then differentiate involuntary manslaughter from unintentional murder in one of two ways. First, the legislature could define manslaughter as not requiring actual awareness of risk of death. Second, it could distinguish murder from manslaughter by requiring additional aggravating elements for murder or by specifying that the risktaking for murder evidence a more blameworthy callousness or indifference. If reformers require conscious risktaking for manslaughter, then legislation should include a new crime, comparable to the Model Penal Code's negligent homicide, in order to cover those homicides, previously treated as murder or manslaughter, that occur without convincing proof of awareness of risk.
The mid-twentieth century preference for subjective standards of criminal culpability offers a convenient way of distinguishing murder and manslaughter. But requiring subjective awareness of risk raises philosophical and practical issues.(476) And to resort to a subjective standard would represent a departure from longstanding authority while conflicting with the strong judicial preference for objective standards of homicide culpability announced in other contexts.(477)
Short of comprehensive revision of homicide statutes, the legislature could do much to help clarify the application of existing statutes through more modest amendments to the existing code. First, the legislature should clean up the code by repealing those statutes that have been unnecessary since 1857. These include the statutes that by their terms duplicate the elements of involuntary(478) and voluntary(479) manslaughter. They also include statutory forms of manslaughter that require a culpable mental state worse or higher than culpable negligence.(480) Such unnecessary statutes probably include all the manslaughter statutes except the general voluntary and involuntary manslaughter statutes, the statute imposing manslaughter liability on owners of dangerous animals,(481) and the statute criminalizing causing death of unborn quick children and causing miscarriage or stillbirth of embryos and fetuses.(482)
Second, the legislature could eliminate the language of "without malice" from the voluntary manslaughter statute to make clear that the state bears no burden of disproving malice and that manslaughter is both legally and literally included in the definition of murder.(483) The residual ("[e]very other killing") language of the involuntary manslaughter statute should also be repealed to remove any suggestion that the statute might not apply when another does.(484)
B. Judicial Clarification
Unintentional homicide statutes similar to Mississippi's have proven remarkably durable and resisted waves of reform. Florida, Minnesota, New Mexico, Oklahoma, and South Dakota(485) preserve unintentional murder statutes similar to Mississippi's. Furthermore, Florida and Oklahoma retain statutes defining involuntary manslaughter as homicide resulting from the defendant's "act, procurement, or culpable negligence."(486)
Mississippi appellate courts have more than 160 years experience in interpreting the depraved heart murder and culpable negligence manslaughter statutes. They adapted them to altered circumstances and are capable of resolving the current confusion by appropriate judicial clarification. The courts must explain the difference between the risktaking required for unintentional murder and manslaughter. While they could do so in any number of ways consistent with their judicial authority to interpret and clarify legislation, the simplest way would be to modify the current definition of culpable negligence, which already finds its source in case law. Rather than requiring conscious disregard of probable fatal consequences or indifference to the safety of human life,(487) the court might redefine culpable negligence as either acts (with or without awareness) that create a high probability of death or acts accompanied by the conscious awareness of the probability of serious injury.
This modest redefinition would differentiate culpable negligence from the higher risktaking evidencing a disregard of life required for murder. The difference could be helpfully reinforced by appropriate jury instructions.(488) The instructions should eliminate once and for all any reference to "malice" in keeping with the language of the statutes, the intent of the legislatures in 1839 and 1857, and common sense.
Equally important, appellate courts should leave the determination of the level of culpability to the jury. They should require culpable negligence manslaughter instructions in all prosecutions for depraved heart murder. But they should not reverse verdicts supported by sufficient evidence when appropriate instructions have been given.
1. * Professor of Law, the University of Mississippi School of Law. Research funding for this work was underwritten by the National Center for Justice and the Rule of Law at the University of Mississippi School of Law, which is supported by a grant from the Office of Justice Programs at the United States Department of Justice (2000-DD-VX-0032).
2. 1 Windham v. State, 602 So. 2d 798, 807 (Miss. 1992) (Robertson, J., concurring).
3. 2 Miss. Code Ann. § 97-3-19(2) (2000).
4. 3 Id. § 97-3-19(1).
5. 4 Id. §§ 97-3-27 to -33, -39 to -47.
6. 5 Id. § 63-11-30(1) (1996 & Supp. 2001). The code gives the statute the general title "Operation of vehicle while under the influence of intoxicating liquor, drugs or controlled substances, or other substances impairing ability to operate vehicle . . . ." Id. § 63-11-30. The offense consists of driving while intoxicated and causing either death or certain injuries. Id.; seeinfra notes 181-89 and accompanying text. The court has referred to the offense as "aggravated DUI." Mayfield v. State, 612 So. 2d 1120, 1126 (Miss. 1992).
Although this article considers the offense in connection with homicide crimes, the supreme court has concluded that aggravated DUI is not a homicide in important respects. Mayfield, 612 So. 2d at 1126-28. It reasons that the statute is principally designed to punish driving while intoxicated, not homicide, and that the punishment is increased for accidents resulting in certain injuries or death. Id. at 1127. According to Justice McRae, a single act of intoxicated driving resulting in multiple injuries or death constitutes a single offense. Id. at 1128. Justices Banks and Roberts dissented with respect to this part of the opinion, id. at 1130, and Justice Banks rightly challenged the court's reliance on the title of the statute as evidence of the legislature's intention. Id. at 1130-31 (Banks, J., concurring in part and dissenting in part).
7. 6 Mississippi defines as murder, killings without authority of law:
done without any design to effect death by any person engaged in the commission of any felony other than rape, kidnapping, burglary, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felonies.Miss. Code Ann. § 97-3-19(1)(c) (2000). The language "without any design" makes explicit the fact that the state has to prove no mens rea with respect to the killing other than the mens rea and other elements of the felony; it is not intended to require the state to prove the absence of any design. The listed felonies are excluded because they are predicate felonies for capital murder in Mississippi. Capital murder includes a killing without authority of law:
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies;
(f) When done with or without any design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felony.Id. § 97-3-19(2)(e), (f).
8. 7 This common law doctrine is partly codified in Mississippi, which defines murder to include a killing "done with deliberate design to effect the death of the person killed, or of any human being." Id. § 97-3-19(1)(a) (emphasis added); see Ross v. State, 131 So. 367, 368 (Miss. 1930) (holding that "the accidental killing of a person other than the one intended is murder").
9. 8 4 William Blackstone, Commentaries *195. Blackstone purported to quote Coke's seventeenth-century definition. Coke's words were:
Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any County of the Realm any reasonable creature in rerum natura under the kings peace, with malice fore-thought, either expressed by the party, or implied by law, so as the party wounded, or hurt, &c. die of the wound, or hurt, &c. within a year and a day after the same.3 Edward Coke, Institutes *47.
10. 9 4 Blackstone, supra note 8, at *198.
11. 10 LaFave says that after manslaughter arose as a separate form of felonious homicide, the defining element of "malice aforethought" for murder "required at least an intent to kill, plus perhaps an element of hatred, spite or ill-will." Wayne R. LaFave, Criminal Law § 7.1(a), at 654 (3d ed. 2000). Dressler makes a similar point. Joshua Dressler, Understanding Criminal Law § 31.02[B], at 503-04 (3d ed. 2001) ("In very early English history, the word `aforethought' probably required that a person think about, or premeditate, the homicide long before
the time of the killing.").
It is questionable whether other early societies required intent for homicide liability. Cf. Exodus 21:12 (Revised Standard Version) ("Whoever strikes a man so that he dies shall be put to death. But if he did not lie in wait for him, but God let him fall into his hand, then I will appoint for you a place to which he may flee."); Deuteronomy 19:4-5 (Revised Standard Version) ("This is the provision for the manslayer, who by fleeing there may save his life. If any one kills his neighbor unintentionally without having been at enmity with him in time past--as when a man goes into the forest with his neighbor to cut wood and his hand swings the axe to cut down a tree, and the head slips from the handle and strikes his neighbor so that he dies--he may flee to one of these cities and save his life. . . ."); Numbers 35:9-11 (Revised Standard Version) ("And the Lord said to Moses, `Say to the people of Israel, When you cross the Jordan into the land of Canaan, then you shall select cities to be cities of refuge for you, that the manslayer who kills any person without intent may flee there.'").
12. 11 LaFave, supra note 10, § 7.1(a), at 654-55.
The judges still continued to say that murder is committed by one who unlawfully kills another "with malice aforethought," now however adding the phrase "express or impled," the word "implied" covering the four situations just described wherein literally there exists no premeditated intent to kill.Id. I am not sure of the origin of this theory but it is fully articulated by Sir James Fitzjames Stephen who summarized the history of the caselaw: "First malice prepense is half accidentally made the test of murder. It is then defined to mean a deliberate premeditated design to kill or hurt." 3 James F. Stephen, A History of the Criminal Law of England 63 (London, MacMillan 1883). Stephen claimed that malice was further enlarged by the presumption in fact that malice existed in the absence of evidence of provocation. Id. He argued that this presumption evolved into an irrebuttable legal presumption. Id. As a result, the legal content of malice became provided largely by the development of the doctrine of provocation.
13. 12 The California Penal Code defines murder as "the unlawful killing of a human being, or a fetus, with malice aforethought." Cal. Penal Code § 187 (West 1999). It then provides:
Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.Id. § 188.
The California statute modifies the common law in classifying the killing of a fetus as murder. Id. At common law the killing of a fetus was not murder; but if the child was born alive and died after birth of injuries inflicted before birth--with malice aforethought--it would qualify as murder. See 4 Blackstone, supra note 8,
at *198 ("To kill a child in its mother's womb, is now no murder, but a great misprision: but if the child be born alive, and dieth by reason of the potion or bruises it received in the womb, it seems, by the better opinion, to be murder in such as administered or gave them."). Lord Hale maintained that even under such circumstances, the resulting death was not murder. Williams v. State, 561 A.2d 216, 217-18 (Md. 1989) (citing 1 Sir Matthew Hale, Historia Placitorum Coronae: The History of the Pleas of the Crown 433 (P.R. Glazebrook ed., Prof'l Books Ltd. 1987) (1736)). But Blackstone's view has prevailed in most American jurisdictions. See, e.g., Williams, 561 A.2d at 219 (upholding defendant's conviction for manslaughter of baby which was born alive but died hours later because of injury inflicted on mother).
14. 13 Murder under Anglo Saxon jurisprudence denoted a particular kind of secret killing, originally where the killer hid the body and later where the killer attacked secretly or concealed his identity from others. Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200-1800, at 53 (1985). Whether intent was required at first is not known, but Green suggests that liability could be mitigated if the homicide was unintentional. Id. at 51. In any event, stealth, not premeditation, was the operative element. Id. at 53. For example, Green cites a case from 1400 where a defendant who stabbed a victim in the back after an argument was convicted of murder. Id. at 57.
Baker maintains that "the principle of automatic liability was applied to the man whose conduct killed another" and concludes that the requirement of mens rea emerged through pardons that became available for accidental or excusable homicides. J.H. Baker, An Introduction to English Legal History 601 n.33 (3d ed. 1990). While excuses included self-defense and "misadventure," I am aware of no cases where murder resulting from a hostile and unprovoked assault was pardoned because the death was unintended. By the time of Blackstone, homicide per infortunium or misadventure was narrowly defined as:
[W]here a man, doing a lawful act, without any intention of hurt, unfortunately kills another: as where a man is at work with a hatchet, and the head thereof flies off, and kills a stander-by; or where a person, qualified to keep a gun, is shooting at a mark, and undesignedly kills a man: for the act is lawful, and the effect is merely accidental.4 Blackstone, supra note 8, at *182 (footnote omitted). Blackstone is obviously citing to Deuteronomy. See supra note 10.
While Green has provided the most searching and plausible account of the early origins of murder (and malice aforethought), much still remains unknown. See Green, supra, at 51-53. Part of the problem arises from the difficulty of projecting contemporary norms onto the past. Green, like others, assumes that thirteenth-century jurors distinguished between intended and unintended consequences, but this may be a more modern construct. See id.
An additional difficulty arises from the instrumental assumptions that murder developed in close association with murdrum. Id.Murdrum was a fine for secret killings imposed after the conquest. Id. at 51. It is unclear whether it was limited to intentional killings. Id. at 53. "In some counties a murdrum was exacted by custom in case of accidental death; Bracton regarded this as an abuse, and . . . it
was abolished." 2 Frederic Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I, at 487 (Cambridge Univ. Press 1923) (2d ed. 1898). The background assumption in instrumental theories is that before the Conquest, special royal jurisdiction for other homicides (where the identity of the killer was known) was unnecessary because the kin would obtain relief through the wergild (and the king would obtain his wite). Green, supra, at 51. Murder, in contrast, threatened to disrupt the normal process of composition and could lead to feuds. Id. After the Conquest, the crown assumed a monopoly over all felonies extending liability to all homicides, not just murder. Id. at 50. And the crown imposed a special fine of murdrum on the community that was unable to prove that the homicide victim was not Norman. Id. at 51. See generally 3 Stephen, supra note 11, at 31. But as Green shows, the community's resistance to imposing the death penalty on all killers ultimately led to the emergence of distinct principles of excuse and to the separate crime of manslaughter. Green, supra, at 52.
Nevertheless, instrumental explanations do not account for all important features of Anglo Saxon homicide law and may not fully explain the community's continuing abhorrence for certain forms of homicide after the Conquest, and to its concomitant resistance to imposing capital punishment on other forms of homicide. Id. at 51-53. It seems implausible, for example, that murder became the worst form of homicide because of the resentment of fines imposed under Englishry, as Stephen claimed. 3 Stephen, supra note 11, at 40. Similarly, Green demonstrated that the community abhorrence of secret killings predated Englishry and explained the community's reluctance to convict other killers. Green, supra, at 53.
The deep roots of such abhorrence are not clear. Secret killings (especially those in which a body was concealed in the earth) have been viewed with special horror in other contexts. Cain's fratricide was aggravated by spilling his brother's blood on the ground. Genesis 4:10 (Revised Standard Version) ("The voice of your brother's blood is crying to me from the ground."). The account of Moses killing the Egyptian included the significant detail that he hid the corpse in the sand. Exodus 2:12 (Revised Standard Version). These acts of concealing the victim's body in the ground literally polluted the earth. And by preventing the rituals necessary to propitiate the spirit of the dead and assure its future, such concealing may have offended deep social norms. Such norms were the source of the central conflict in Antigone, and residues of them may survive in the law's prohibition of "Christian burial" speeches to elicit confessions or in the horror provoked where defense lawyers obtained knowledge of the location of the hidden bodies of homicide victims.
In any event, Green concludes that in the fourteenth century the threshold meaning of malice aforethought was "mere deliberateness," though the term could also mean "true premeditation." Green, supra, at 56.
15. 14 Green, supra note 13, at 51. It is generally assumed that the various
forms of homicide discussed by Bracton (d. 1268) were felonious, except those that he specifically stated did not impose liability. But his text is ambiguous and difficult to reconstruct. He divided homicide into unintentional (casu) and intentional ([v]oluntate), and concluded that unintentional homicide established liability only when the actor was engaged in an improper act. 2 Bracton, On the Laws and Customs of England 341 (Samuel E. Thorne trans., George E. Woodbine ed., 1968). He further divided intentional homicide into "homicide committed openly and in the presence of many bystanders" and "homicide committed in secret, in no one's presence, to no one's knowledge, and in no one's sight or hearing, which is called murder [murdrum]." Id. at 378-79.
As the law developed, Baker concludes that the main form of felonious homicide besides murder became "chance medley." Baker, supra note 13, at 601. This, he suggests, was a corruption of chaude mêlée (literally "hot conflict"). Id. at 601 n.40. Accordingly, malice aforethought would have served functionally to distinguish those killings that were not the result of a sudden or spontaneous quarrel. The clearest refutation of such a quarrel would, of course, have been evidence of longstanding ill will by the killer towards the victim. But the functional distinction was not coherent.Malice was not easy to define, and even harder to prove; often it had to be implied from the facts surrounding the killing. So long as there was a general evil intent, an intent to injure someone, there was no need to prove a specific intent to kill the deceased. Moreover, a chance fight, if unprovoked, might itself be murderous.Id. at 602.
16. 15 Green, supra note 13, at 56-57. Green makes the important observation that the distinction between injuring and killing may have held less significance "in a day when fights began easily and led often to death due to sepsis or other results of poor medical techniques." Id. at 51.
To this we might add, however, that we have little way of gauging the faith of patients and their kin in such medical techniques that would affect their judgment of responsibility for the resulting death. In a world still haunted by occult powers, residues of convictions that aggressive emotions like hatred and jealousy themselves operated to bring about harm could also have provided content to "malice aforethought."
17. 16 Blackstone defined express malice as:[w]hen one, with a sedate deliberate mind and formed design, doth kill another: which formed design is evidenced by external circumstances discovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm.4 Blackstone, supra note 8, at *199.
18. 17 "Also, if even upon a sudden provocation one beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, yet he is guilty of murder by express malice; that is, by an express evil design, the genuine sense of malitia." Id.
For Blackstone the disproportionate response to the provocation established malice that prevented the killing from being mitigated to manslaughter. Id. at *200. When the Mississippi Code provided generally that provoked killings were excusable homicide, see Miss. Code Ann. § 97-3-17(b) (2000), the legislature nevertheless provided that a killing in a cruel or unusual manner provided an element for manslaughter. See id. § 97-3-35 ("The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.").
19. 18 4 Blackstone, supra note 8, at *199-200. In such circumstances, a lesser crime would not be appropriate. Id.
20. 19 Id. at *200. Blackstone said it was murder "because of the unlawful act, the malitia praecogitataor, or evil intended beforehand." Id.
21. 20 Id. at *199. Blackstone also gave the example of a park-keeper who tied a boy to a horse's tail and dragged him through the park because he stole some wood. Id.
22. 21 See id. at *200. ("Also, in many cases where no malice is expressed, the law will imply it: as, where a man wilfully poisons another; in such a deliberate act the law presumes malice, though no particular enmity can be proved.").
23. 22 3 Coke, supra note 8, at *51. Stephen could not understand why such malice was "implied" for Coke, arguing that if the unprovoked killing was intended, then it was accompanied by express malice, but if it was unintentional, then there was no malice. 3 Stephen, supra note 11, at 55.
24. 23 3 Coke, supra note 8, at *52.
25. 24 See 3 Stephen, supra note 11, at 56. Stephen thought that Coke's omission was surprising because Coke had included extreme recklessness as a form of mens rea for liability under the mayhem statute. Id. And Stephen was convinced that the omission was not grounded on a defensible moral principle: "As far as wickedness goes it is extremely difficult to suggest any distinction worth taking between an intention to inflict bodily injury and reckless indifference whether it is inflicted or not." Id.
26. 25 Hale divided malice into "malice in fact" and "malice in law, or ex praesumptione legis," and defined the former: "Malice in fact is a deliberate intention of doing some corporal harm to the person of another." 1 Hale, supra note 12, at 451. He further divided implied malice into three kinds:
1. When the homicide is voluntarily committed without provocation. 2. When done upon an officer or minister of justice. 3. When done by a person, that intends a theft or burglary.Id. at 455. The second two categories correspond to killings while resisting lawful arrests and felony murder.
As had Coke, Hale assumed that implied malice required an intent to kill. This was evident both in his definition that the homicide be "voluntarily committed" and in his discussion of cases. Id. Indeed, Hale apparently never questioned the need for such intent, for his case analysis focused on elaborating circumstances that failed to establish mitigating provocation. Id. at 456-57. In most of the cases discussed by Hale, the killers respond to legally insufficient provocation with blows patently intended to kill or seriously injure. See id. But in one case a woman in a tavern directed insulting language at the defendant who threw a broom staff at her from some distance. Id. at 456. The broom hit her head and killed her. Id. The justices concluded easily that the words were not sufficient provocation and that the homicide would be murder if caused by a firearm or sword. Id. at 456-57. But they could not agree
whether this striking, that was so improbable to cause death, [would] not alter the case; the judges were not unanimous in it, and in respect, that the consequences of a resolution on either side was great, it was advised the king should be moved to pardon him, which was accordingly done.Id. at 457. Though the case appears at first as though there was considerable authority for finding that the unintended killing could qualify as murder, the result (a pardon for excusable homicide rather than mitigation to manslaughter)
strongly suggests that the consensus was that a genuinely unintended death should not qualify as murder. It is not clear whether Hale thought the sex of the victim was important because it aggravated the affront of the insulting words at issue, because it aggravated the disproportionate response of the defendant to the insult, or because it reduced the inference that the defendant's assault was designed to initiate an affray likely to result in death.
This result of the case was surprising if the defendant intended to strike the victim with the broom (an assault), for Coke failed to distinguish between the severity of bodily injury intended. See 3 Stephen, supra note 11, at 57 (criticizing Coke for promoting as murder the death that resulted from any unlawful act and any intent to injure, not just intent to inflict serious injury). Moreover, it was well- established that even an unintended death resulting from an unlawful act (like assault) would be manslaughter. 4 Blackstone, supra note 8, at *183. The result is, accordingly, anomalous and may possibly be explained either by the court's uncertainty as to whether the throwing of the broom evidenced an attempt to strike the victim or by the court's lack of sympathy for the victim, a woman and possibly a prostitute.
27. 26 4 Blackstone, supra note 8, at *200.
28. 27 Id.
And if one intends to do another felony, and undesignedly kills a man, this is also murder. Thus if one shoots at A and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder. So also if one gives a woman with child a medicine to procure abortion and it operates so violently as to kill the woman, this is murder in the person who gave it.Id. at *200-01.
29. 28 Id. at *201.
30. 29 Id. Blackstone claimed that this presumption shifted the burden of production of evidence, if not the ultimate burden of proof: "And all these circumstances of justification, excuse, or alleviation, it is incumbent upon the prisoner to make out, to the satisfaction of the court and jury . . . ." Id.; cf. Phillips v. State, 1999-KA-01276-SCT, ¶¶ 8-20, 794 So. 2d 1034, 1036-39 (Miss. 2001) (holding voluntary manslaughter instruction properly denied in murder trial in absence of defendant's testimony or other evidence supporting theory and finding malice may be inferred from use of deadly weapon).
31. 30 Blackstone's claim was challenged by nineteenth-century commentators. Cooley remarked: "As the majority of homicides are not, in fact, malicious, but occur through misadventure, or under circumstances which would reduce the offence to manslaughter, a legal presumption of malice seems inconsistent with the general doctrines of the criminal law, as well as with humanity." 4 William Blackstone, Commentaries on the Laws of England *395 n.22 (Thomas M. Cooley ed., Chicago, Callahan & Co. 3d ed. 1884) (Cooley's comment).
Blackstone's successor as Vinerian lecturer likewise insisted:
That the destruction of life may amount to murder it must now be the effect of malice aforethought, malitia praecogitata. By malice in the legal sense is not meant any personal grudge, or private malignity of one man against another, but malus animus, deliberate and habitual depravity, which may influence the action, whether it be done irâ, vel odio, vel causâ lucri. The general notion has been already settled by the exceptions from it: the privation of life neither by misfortune, nor by justice nor by necessity of self-defence, nor by the sudden violence of passion will be accounted murder.1 Robert Chambers, A Course of Lectures on the English Law Delivered at the University of Oxford 1767-1773, at 402-03 (Thomas M. Curley ed., 1986).
Despite his acceptance of the negative definition of malice as unprovoked homicide, Chambers assumed that malice continued to require a real intent to kill. He discussed Hale's case where the defendant had thrown a broom at a woman and killed her after she insulted him. Seesupra note 25. Chambers concluded that this would be an easy case in his day: "I believe in the present state of opinions, both popular and juridical, no difficulty would have been raised. The provocation was sudden, the resentment petulant, and the consequence not intended." 1 Chambers, supra, at 403-04.
32. 31 This paradox assumes constitutional dimensions in the United States because the Supreme Court has held that due process both requires states to prove all elements of an offense beyond a reasonable doubt (including mental elements) and prohibits states from shifting the burden of proof on such elements. Francis v. Franklin, 471 U.S. 307, 313 (1985); see U.S. Const. amend. XIV, § 1 ("[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . ."). As a result, even when a killer aimed a gun at a victim through a door and pulled the trigger causing death, when the killer is charged with a form of murder that includes the element of intent, the State must prove the killer's intent and may neither direct the jury to find such intent from the resulting death nor employ jury instructions that include language like "presume" that may confuse the jury as to the proper burden of proof on the issue of intent. Franklin, 471 U.S. at 313 ("The Due Process Clause of the Fourteenth Amendment . . . prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.").
33. 32 Blackstone mentions an English statute:
But there is one species of manslaughter which is punished as murder, the benefit of clergy being taken away from it by statute; namely, the offence of mortally stabbing another, though done upon sudden provocation. For by statute 1 Jac. 1, c. 8, when one thrusts or stabs another, not then having a weapon drawn, or who hath not then first stricken the party stabbing, so that he dies thereof within six months after, the offender shall not have the benefit of clergy, though he did it not of malice aforethought.4 Blackstone, supra note 8, at *193.
34. 33 Use of a deadly weapon is sufficient evidence of malice or intent to kill. Phillips, ¶ 11, 794 So. 2d at 103 ("We have held that `malice, or deliberate design, may be inferred from use of a deadly weapon.'") (quoting Carter v. State, 97-KA-00760-SCT, ¶ 21, 722 So. 2d 1258, 1263 (Miss. 1998)). Mississippi trial courts before the mid-twentieth century repeatedly gave an instruction that "malice is implied by law from the nature and character of the weapon used, and the deliberate use of a deadly weapon . . . is in law, evidence of malice." Criss v. State, 30 So. 2d 613, 614 (Miss. 1947) (quoting instruction, observing that "we do not approve it," but finding that it was not reversible error). The court's failure to reverse would be questionable today under Franklin.
In Smith v. State, the defendant fired a pistol into a crowded room, killing a fifteen-year-old girl. 38 So. 2d 725, 725 (Miss. 1949). A jury convicted him of murder under a "deliberate design" instruction, and the court affirmed with the
observation: We are of the opinion that under the usual and customary indictment . . . wherein the crime of murder is charged, there is sufficient evidence in this record to warrant the jury in convicting the defendant of murder without regard to whether clause (a) ["deliberate design"] or (b) ["act eminently dangerous to others"] of the statute hereinabove quoted is the applicable one.Smith, 38 So. 2d at 725-26. Affirming the conviction, the court concluded that use of the weapon established a presumption or implication of malice that warranted submitting the case to the jury on a theory of murder and that there was no reversible error in the deliberate design instruction. Id. at 726.
It is true that malice is an essential element of murder, but it was held in the case of Criss v. State, Miss., 30 So. 2d 613, that actual malice is not a necessary ingredient of murder. As a matter of law the element of malice is implied from the deliberate use of a deadly weapon. Cases are cited by appellant to the effect that where all of the facts are in evidence an instruction for the State that malice will be implied from the deliberate use of a deadly weapon is not proper. However, the State did not obtain such an instruction in the instant case. The Court, however, was entitled to consider the law on the question in determining whether or not the issue of murder should be submitted to the jury at all.Id.; accord Nicolaou v. State, 612 So. 2d 1080, 1083 (Miss. 1992) (holding unexplained killing with deadly weapon sufficient evidence of murder). See generally Stanny Sanders, The Work of the Mississippi Supreme Court--Criminal Law and Procedure, 21 Miss. L.J. 10, 12 (1949) ("In other words, because of the presumption of malice attending the deliberate use of a deadly weapon, when a homicide results from such a use of such weapon, the issue of murder can be properly submitted to the jury, even though the state fails to produce any evidence of malice or motive and although all the facts and circumstances surrounding the homicide are in evidence, and the jury therefore cannot be instructed as to the aforementioned presumption").
35. 34 Echoing Blackstone, Chitty insisted that malice meant either ill will towards a particular victim or "an evil design in general." 2 Joseph Chitty, A Practical Treatise on the Criminal Law *720.
36. 35 Dressler, supra note 10, § 31.02[B], at 503:
"Malice" is a legal term of art with little connection to its non-legal meaning. As the term has developed, a person who kills another acts with the requisite "malice" if she possesses any one of four states of mind: (1) the intention to kill a human being; (2) the intention to inflict grievous bodily injury on another; (3) an extremely reckless disregard for the value of human life; or (4) the intention to commit a felony during the commission or attempted commission of which a death results.Id. (footnotes omitted); see LaFave, supra note 10, § 7.1(a), at 655. "To sum up these various modern types of murder, they are: (1) intent-to-kill murder; (2) intent-to-do-serious-bodily-injury murder; (3) felony murder; (4) depraved heart murder." Id. Dressler and LaFave also recognize a possible fifth category, killings arising out of resistance to lawful arrests. Dressler, supra note 10, § 31.02[B], at 503 n.34; LaFave, supra note 10, § 7.1(a), at 655. Students are properly warned "not to invoke the terms `malice' or `malice aforethought' for any of their common-sense connotations; rather, `malice' is a `code word' encompassing the states of mind outlined above." John Kaplan et al., Criminal Law: Cases & Materials 347 (4th ed. 2000). "Malice aforethought" is a legal term of art in which the words are not used in their ordinary sense. . . . Positively, it requires that the defendant at the time of the homicide have one of the following states of mind: (1) An intent to kill . . . . (2) An intent to commit "serious" or "grievous" bodily injury . . . . (3) A wanton and reckless disregard of a very great risk of causing death or serious bodily injury . . . . (4) Malice is also implied when the defendant or his accomplice commits a killing in the perpetration of certain felonies.Phillip E. Johnson, Criminal Law: Cases, Materials & Text 163 (6th ed. 2000). See generally Arnold H. Loewy, Criminal Law in a Nutshell 26 (3d ed. 2000) (listing four kinds of killings as those that "courts have characterized as heinous enough for murder (and therefore with `malice aforethought')") (emphasis added).
Stephen presented the history of malice as culminating in these black letter formulae that he enumerated in his treatise. 3 Stephen, supra note 11, at 80.
37. 36 Rep. Royal Comm. on Cap. Punishment, 1953, [Cmd.] 8809, at ¶ 76, quoted in Andrew Ashworth, Principles of Criminal Law 264 (1995). The Commission concluded that manslaughter was sufficient for unintended homicides. Ashworth, supra, at 264.
38. 37 English Homicide Act of 1957, 5 & 6 Eliz. 2, c. 11, § 1 (Eng.). See generally LaFave, supra note 10, § 7.5, at 690.
39. 38 Ashworth, supra note 36, at 262 (discussing abandonment on grounds of uncertainty).
40. 39 Id. at 259. Intent to cause grievous bodily harm is shown by intent "to cause really serious injury . . . without any proof that the defendant intended, or even contemplated, the possibility that death would result." Id. at 260 (citing Regina Respondent v. Cunningham,  A.C. 566 (1981)). See generally A.P. Simester, Murder, Mens Rea, and the House of Lords--Again, 115 L.Q. Rev. 17 (1999) (discussing House of Lords opinion authoritatively rejecting foresight-of-substantial-risk-of-harm instruction in favor of instruction requiring virtual certainty of serious bodily injury).
41. 40 Scotland defines murder to include killings committed with "wicked recklessness." See generally Ashworth, supra note 36, at 262; G.H. Gordon, Criminal Law of Scotland 736-40 (2d ed. 1978).
42. 41 France defines meurtre (murder) as the "willful killing of another," Code Pénal [C. pén.] art. 221-1, in The French Penal Code of 1994 as amended as of January 1, 1999, at 94 (Edward A. Tomlinson trans., Fred B. Rothman & Co. 1999) [hereinafter French Penal Code], and adds that "[m]urder committed with premeditation is an assassination . . . punishable by felony imprisonment for life." Id. art. 221-3, in French Penal Code, supra, at 94. In contrast, causing death "by carelessness, imprudence, inattention, negligence, or the non-observance of an obligation of safety or prudence imposed by law or regulation" is "unintentional homicide." Id. art. 221-6, in French Penal Code, supra, at 96. "The key feature of the intention is that it is an intention to take life. It is not necessary that the victim be the person the murderer wanted to kill." John Bell et al., Principles of French Law 242 (1998). Under French law, meurtre liability can also be aggravated when it is committed during a serious crime and by the status of the victim; it is then punished comparable to assassination. Compare C. pén. arts. 221-2-, 221-3, in French Penal Code, supra, at 94-95, with C. pén. art. 221-4-, at 95 (allowing court to raise penalty in certain circumstances). Situation factors and the status of the victim cannot elevate unintentional homicide to meurtre. Id. art. 221-6, in French Penal Code, supra, at 96.
Dutch law provides that "[a] person who intentionally takes the life of another is guilty of manslaughter," and "[a] person who intentionally and with premeditation takes the life of another person is guilty of murder." Wetboek van Strafrecht [WvS] arts. 287, 289, in The Dutch Penal Code 199 (Louise Rayar & Stafford Wadsworth trans., Fred B. Rothman & Co. 1997). Manslaughter liability is aggravated and punished comparable to murder when committed during the commission of criminal offenses. Id. art. 288, in The Dutch Penal Code, supra, at 199. In contrast, "[a] person who by negligence or carelessness is responsible for the death of another [is guilty only of death ensuing as a result of negligence or carelessness and] is liable to a term of imprisonment or of detention of not more than nine months." Id. art. 307, in The Dutch Penal Code, supra, at 204.
German penal law similarly provides that homicide (Totschlag) requires intent to kill. For translations, see The Penal Code of the Federal Republic of Germany 176 (Joseph J. Darby trans., Fred B. Rothman & Co. 1987), and The German Penal Code of 1871, at 113 (Gerhard O.W. Mueller & Thomas Buergenthal trans., Fred B. Rothman & Co. 1961) (containing German Penal Code as amended through 1953). Homicide is aggravated to Mord (murder) when committed "from a lust to kill (Mordlust), to satisfy [the killer's] sex drive, from covetousness or other base motives; treacherously or cruelly or by means endangering the community or for the purpose of making possible or concealing the commission of another crime." Strafgesetzbuch [StGB] § 211, in The Penal Code of the Federal Republic of Germany, supra, at 176.
By excluding extreme recklessness and intent to inflict serious injury from its most serious class of homicide crimes, Continental jurisprudence appears to depart radically from the common law. However, French courts have characterized facts as establishing an intent to kill that common law courts would probably find demonstrated either an intent to injure or extreme recklessness. Bell, supra, at 243 (summarizing French case resulting in meurtre liability where "the act of releasing a driverless and unlit lorry in the direction of a group of police officers with a stone jammed onto the accelerator is sufficient indication of an intention when it is clear the actor knew that the lorry would necessarily kill anyone in its path"). German law reaches a similar result:
Both Soviet and German law take an indirect intention (dolus eventualis) to be sufficient to constitute intentional killing. The technical definition of indirect intention is that if the actor engages in life-endangering behavior, his killing is intentional if he "reconciles himself" or "makes peace" with the likelihood of death. Thus, if the killing is committed with "manifest indifference to the value of human life," even conduct of minimal risk can qualify as intentional homicide. Thus if the suspect fires at a moving car with people in it and a passenger is hit by the bullet, his killing is likely
to be treated as intentional.George P. Fletcher, Rethinking Criminal Law 325-26 (1978).
43. 42 Act of May 26, 1790, ch. 14, § 1, 1 Stat. 123, 123 (1790), reprinted in Frederick E. Hosen, Unfolding Westward in Treaty & Land: Land Documents in United States History From the Appalachians to the Pacific, 1783-1934, at 45 (1988). The Act made the territory south of the Ohio River one "district." Id.
44. 43 Northwest Ordinance of 1787, § 5, reprinted in U.S.C.A. Const., Organic Laws 18 (West 1987). Such laws were subject to disapproval by Congress. Id.
45. 44 John R. Skates, Mississippi: A Bicentennial History 57 (1979). Governor Winthrop Sargent, a federalist and former Secretary of the Northwest Territory, proved unpopular with the inhabitants of the Mississippi Territory. Id. at 56. Critics protested that his government made new laws rather than simply adopting statutes in force in one of the original states. See generally id. at 57; Michael H. Hoffheimer, Mississippi Courts: 1790-1868, 65 Miss. L.J. 99, 103-04 n.14 (1995).
46. 45 A Law Respecting Crimes and Punishments (Feb. 28, 1799), reprinted in Sargent's Code: A Collection of the Original Laws of the Mississippi Territory Enacted 1799-1800: By Governor Winthrop Sargent and the Territorial Judges 11-18 (1939) [hereinafter Sargent's Code]. Crimes were among the statutes adopted by Governor Sargent and Justices P. Bryan Bruin and Daniel Tillton on the first day they legislated for the Mississippi Territory. P.L. Rainwater, Introduction to Sargent's Code, supra, at ii. The crimes were clearly derived
from some restatement of common law doctrines but do not closely follow the formulas of Blackstone. Id. The provisional government subsequently enacted criminal provisions to regulate slaves. A Law Providing for the Speedy Trial of Slaves (Oct. 30, 1800), reprinted in Sargent's Code, supra, at 167-68; A Law for the Regulation of Slaves (Mar. 30, 1799), reprinted in Sargent's Code, supra, at 44-48. Most crimes were punished by imprisonment, whipping, or fine, and legislation attempted to provide the necessary means. See A Law Directing the Building and Establishing of a Court House, Gaol, Pillory, Whipping Post and Stocks in Every County (Apr. 12, 1799), reprinted in Sargent's Code, supra, at 88-90. For a critical account of Governor Sargent's conviction that more jails were needed in the Territory, see the redeemer historical account by Robert Lowry & William H. McCardle, A History of Mississippi from the Discovery of the Great River to the Death of Jefferson Davis 169 (Jackson, Miss., R.H. Henry & Co. 1891).
Governor Sargent was convinced of the need for imposing legal order in the Territory even before he arrived, characterizing inhabitants of the Territory as men of "refractory and turbulent spirit." Rainwater, supra, at ii (quoting letter from Governor Sargent to Secretary of State Pickering). Even before the arrival of the second judge made it possible to adopt legislation, the governor took emergency steps, citing "imperious Necessity," Letter from Governor Sargent to Secretary of State Timothy Pickering (Sept. 29, 1798), in 1 Mississippi Territorial Archives 1798-1803: Executive Journals of Governor Winthrop Sargent & Governor William Charles Cole Claiborne 53 (Dunbar Rowland ed., 1905), to appoint conservators of the peace. The governor obviously assumed the Territory was subject to certain criminal laws prior to legislation, for he authorized the conservators to suppress riots and affrays, hold the publishers of treasonable and seditious language to account, and to arrest criminals and hold felons pending the establishment of territorial supreme court. See generally Rainwater, supra, at ii; Hoffheimer, supra note 44, at 107.
While the prosecution of common law crimes might have been within Congress's grant of common law jurisdiction to the territorial courts, the provisional territorial government of the governor and judges was limited by the act of Congress to "adopt[ing] and publish[ing]" positive laws of the original states. Rainwater, supra, at ii. The governor's critics protested that parts of Sargent's Code, not copied from existing state legislation, exceeded the governor's authority. Id. And they objected that the punishment of arson by forfeiture of property in the Territory violated the federal Constitution. Id. at iii; cf. U.S. Const. art. III, § 3 ("[N]o Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.").
Problems were aggravated by the lack of access to statutes of states and by the lack of legal training of the governor and judges. See generally Hoffheimer, supra note 44, at 103 n.14 (citing sources).
47. 46 A Law Respecting Crimes and Punishments, Sargent's Code, supra note 45, at 11.
48. 47 Id. at 12. The code defined the structures more broadly than the common law but defined the specific intent requirement more narrowly:
If any person or persons, shall in the night season, break, open and enter, any dwelling house, store or vessel, in which any person or persons dwell or reside, within [sic] a view and intention, of stealing and purloining therefrom, he, she or they, so offending; shall be deemed guilty of burglary . . . .Id. The punishments, whipping, fine, and imprisonment were increased if the criminals completed the theft and if they "shall commit, or attempt to commit, any personal abuse, force or violence, or shall be so armed with any dangerous weapon or weapons as clearly to indicate a violent intention." Id. This last provision was followed immediately by the murder rule, which, in this context, thus makes clear that the drafters envisaged that the killers subject to the rule were killing while intentionally inflicting violence or employing dangerous weapons in the course of burglary.
And if the death of any innocent person should ensue, from the breaking, and entering any dwelling house, shop, store or vessel, as aforesaid: and in any of the instances aforesaid; the person or persons, so breaking and entering, shall be deemed guilty of wilful murder: and all persons aiding and assisting, in breaking and entering any dwelling house, shop, store or vessel as aforesaid, or in any of the crimes consequent thereupon, as before pointed out, shall be deemed principals.Id. at 13.
49. 48 Id. Unarmed robbery was punished like simple burglary. Id. But when accompanied by a more violent assault, the punishment was increased, and when the assault resulted in death, it was classified as murder:
Whoever shall commit such robbery, with personal abuse or violence, or be armed at the time, with any dangerous weapon or weapons, so as clearly to indicate an intention of violence, he, she or they, so offending, upon conviction thereof, shall moreover suffer as in the second instance of Burglary: and in case any person or persons, robbing or attempting to rob, as aforesaid, shall kill or slay, any person or persons, defending him, her or themselves, or others: or his, her or their property, against such robber or robbers, or person or persons attempting to rob, or in pursuing and endeavoring to apprehend, and secure such person or persons, so robbing or attempting to rob, he, she or they so offending, shall be
deemed guilty of wilful murder; and all aiders and abettors, in any robbery, as aforesaid, and in any of the crimes consequent thereupon, as before pointed out, shall be deemed principals.Id.
50. 49 Id. at 12. The code did, however, specify at least some circumstances that absolved the killer of all criminal liability:
[I]f any person in the just, and necessary defense of his own life, or the life of any other person, shall kill or slay, another person, attempting to rob or murder, in the field, or highway, or to break into a dwelling house, if he cannot with safety to himself, otherwise take the felon, or assailant, or bring him to justice, he shall be holden guiltless.Id. at 11-12.
51. 50 Act of Feb. 10, 1807, § I, reprinted in Statutes of the Mississippi Territory 212 (1816) ("If any person or persons shall commit the crime of wilful murder, such person or persons, on being thereof convicted, shall suffer death."). The common law recognized the crime of petit treason, essentially murder of a husband by a wife (not vice versa), of a master by a servant, or an ecclesiastical superior by an inferior, see 4 Blackstone, supra note 8, at *203-*04, and made it indictable and punishable "as is directed in other kinds of wilful murder." Act of Feb. 10, 1807, § II, reprinted in Statutes of the Mississippi Territory, supra, at 212. The Act imposed the death penalty on accessories before the fact to wilful murder, rape, arson, robbery, and burglary. Id. § XII, at 213.
It incorporated all other common law offenses. Id. § XLV, at 221 ("Every other felony, misdemeanor, or offence whatsoever, not provided for by this or some other act of the general assembly, shall be punished as heretofore, by the common law.").
52. 51 Act of Feb. 10, 1807, § XXXIX, at 219.
53. 52 Act of December 24, 1814, § I, reprinted in Statutes of the Mississippi
Territory, supra note 50, at 244: "Hereafter, any person who shall commit the crime of manslaughter, and be thereof convicted, such person shall be fined in a sum not exceeding five hundred dollars, and be imprisoned not exceeding twelve months [at the jury's discretion.]" Id.
54. 53 The act consolidated previous sections punishing principals and accessories before the fact and removed "wilful" from the characterization of murder. Act of Feb. 12, 1820, ch. 56, § 2, 1820 Miss. Laws 3d Sess. 67, 67. "That very person who shall commit murder, or shall aid, abet, counsel, hire, command, cause or procure an person or persons to commit murder, shall, on being thereof convicted, suffer death." Id. It continued to provide that petit treason be indicted and punished like murder. Id. § 3, at 67-68. In addition, it copied verbatim the provision from 1807 territorial legislation providing that the survivor of a duel be guilty of "wilful murder." Id. § 38, at 78.
55. 54 Id. § 4, at 68. "That if any person or persons commit the crime of man-slaughter, and be thereof convicted, such person or persons shall be fined in such sum, as shall be assessed by the court, and branded on the hand with the letter M, in open court." Id. Both the change of discretionary authority to impose a fine for manslaughter from the jury to the court and the mandatory requirement of branding may evidence the legislature's dissatisfaction with the results of jury decisionmaking. The reasons for the removal of any authority to imprison is problematic and may have been a mistake. See infra text accompanying note 61.
56. 55 Rev. Code Miss. ch. 56, § 1 (1824) (concerning the crimes of poisoning and stabbing and their respective punishments).
It is questionable whether this statute responded to a practical gap in the murder laws. It seems designed rather to alleviate a concern that might have been provoked by Blackstone's discussion of implied malice. Blackstone viewed killing by poison as "the most detestable," 4 Blackstone, supra note 8, at *196; nevertheless, he believed that willful poisoning did not necessarily show express
malice. Id. at *200. This, according to the theory set forth above, see supra text accompanying notes 17-18, was because conclusive evidence of poisoning with intent to kill might exist without further evidence of longstanding or notorious hostility. 4 Blackstone, supra note 8, at *200. But Blackstone insisted this was an easy case where the law presumed malice. Id. The addition of this statute may have resulted from a legislator misunderstanding Blackstone and concluding that the problem of classifying deliberate poisoning killings as evidencing express malice suggested a difficulty in classifying them as murder.
57. 56 See Blackstone's discussion of this statute, supra note 32. Under English law these killings were not in fact classified as murder (as there was not necessarily malice aforethought), but by withdrawing benefit of clergy, they were punished the same as murder.
58. 57 The Mississippi statute incorporated the elements and some of the language of the English model. Rev. Code Miss. ch. 56, § 2 (1824) (stabbing any person "that hath not then any weapon drawn" nor struck the first blow who died within six months "although it cannot be proved that the same was done of malice aforethought . . . shall be . . . wilful murder"). This statute, dated June 11, 1822, expressly incorporated defenses of self-defense and misfortune that were made general defenses to homicide in the more comprehensive code, dated June 14, 1822. See id. ch. 54, § 29.
This statute and the one addressing homicide by perjury, infra note 67, betray the influence of Blackstone. Friedman remarked of contemporary courtroom practice: "The poverty of source materials left a vacuum, filled in by Blackstone, local statutes, and native wit. Few lawyers could know how to distinguish the fossils in Blackstone from the living law back East. For this reason, court law was, simultaneously, freewheeling and curiously archaic." Lawrence M. Friedman, A History of American Law 145 (2d ed. 1985). Mississippi positive laws from this period suggest that Friedman's remarks apply also to the legislative use of Blackstone.
59. 58 Rev. Code Miss. ch. 55, § 1 (1824).
60. 59 See State v. Jones, 1 Miss. (1 Walker) 83, 85 (1820) ("The taking away the life of a reasonable creature, under the king's peace, with malice aforethought, express or implied is murder at common law.").
61. 60 Rev. Code Miss. ch. 54, § 2 (1824). The Act also copied verbatim the 1820 statute making petit treason murder. Id. § 3.
62. 61 Id. § 4.
If any person or persons shall commit the crime of manslaughter, and be thereof convicted, such person or persons shall be fined in such sum, and imprisoned, for such length of time, as shall be adjudged by the court, and branded in the hand with the letter M, in open court.Id.
63. 62 Id. § 68. "[I]f any person or persons shall be convicted a second time of the crime of manslaughter, the person or persons so offending, shall suffer death." Id. At common law, benefit of clergy was available only for the first conviction of manslaughter. Accordingly, manslaughter might have been a capital crime under the vague provisions of Sargent's Code, but subsequent legislation had provided more specific forms of punishment that did not incorporate the common law.
64. 63 See 4 Blackstone, supra note 8, at *196 ("There was also, by the ancient common law, one species of killing held to be murder, which may be dubious at this day; as there hath not been an instance wherein it has been held to be murder for may ages past: I mean by bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed."). Blackstone suggested that such cases met the elements of murder but were not prosecuted in order not to deter witnesses in capital cases. Id. at *196 n.g, *197.
65. 64 Rev. Code Miss. ch. 54, § 59 (1824). "If any person bear false witness wilfully, and of purpose to take away anyone's life, and the life of any person be taken away in consequence of such false witness; the person so offending, on conviction thereof . . . shall suffer death." Id.
66. 65 Id. § 29. This is the predecessor of Miss. Code Ann. § 97-3-17 (2000) (defining excusable homicide). See infra text accompanying notes 74-79.
67. 66 Rev. Code Miss. ch. 54, § 30. This is the predecessor of Miss. Code Ann. § 97-3-15 (2000) (defining justifiable homicide). See infra text accompanying notes 74-79.
There was no statutory privilege of a husband to employ force against his wife, and the Mississippi Supreme Court early held that a husband was not immune to a criminal prosecution for assault and battery against his wife. Bradley v. State, 1 Miss. (1 Walker) 156, 157-58 (1824). The court nevertheless insisted in dictum that a husband had a privilege "within reasonable bounds . . . to inflict pain and suffering" on his wife. Bradley, 1 Miss. at 158. The court specifically referred to the doctrine that a husband might "use a whip or rattan, no bigger
than my thumb, in order to inforce [sic] the salutary restraints of domestic discipline." Id. at 157. The historical authenticity of this common law privilege of wife beating was denied by conservative anti-feminists because some feminists incorrectly associated this privilege with the etymology of the phrase "rule of thumb." An internet search, performed from http://www.google.com, of "rule of thumb feminism" will reveal numerous references.
68. 67 Act of Feb. 15, 1839, ch. 66, 1839 Miss. Laws 102. The formal title of this session law was, "An Act to Amend the Acts of This State Concerning Crimes and Punishments, and the Penitentiary." As codified, this act was given the title Penitentiary Code. See Stat. Miss. ch. 50 (V.E. Howard & A. Hutchinson 1840) [hereinafter Penitentiary Code].
69. 68 Penitentiary Code, supra note 67, pmbl. ("Whereas, it is expedient that the several statutes of this state relating to crimes and punishments, proceedings in criminal cases, and prison discipline, should be consolidated and arranged in appropriate acts, titles and articles, that the language thereof should be simplified, and that omissions and other defects should be supplied . . . .").
70. 69 Most of the language for the homicide statutes was copied verbatim from
contemporaneous New York penal laws. See 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 1-2 (1836); 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 1-2 (1829). Missouri also copied the New York criminal code but followed the Pennsylvania practice of differentiating between first and second degrees of murder. Rev. Stat. Mo. Crimes and Punishments, art. II, § 1 (2d ed. 1840); cf. Plummer v. State, 6 Mo. 231, 241 (1840) (quoting involuntary homicide statute similar to Mississippi's). The New York model was later copied by other states. See infra text accompanying notes 484-85.
71. 70 Penitentiary Code, supra note 67, tit. 2, § 3 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 1, § 4 (1829)).
Petit treason, as before, was explicitly abolished (though not by name as it was in the caption provided by New York reviser). See id. tit. 1, § 7 ("The killing of a master by his servant, or of a husband by his wife, shall not be deemed any other or higher offence than if committed by any other person."). The text of the statute is copied from 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 1, § 8 (1829).
72. 71 New York and Mississippi were hardly the first to eliminate "malice" from definitions of homicide, and the language of "premeditation" and "deliberation" were influenced by the definition of murder in colonial Pennsylvania. William Penn, probably influenced by George Fox's writings against capital punishment, defined murder as homicide done "wilfully or premeditately [sic]." Edwin R. Keedy, History of the Pennsylvania Statute Creating Degrees of Murder, 97 U. Pa. L. Rev. 759, 760-61 (1949) (tracing history of murder statute since colonial times). In 1793, the state of Pennsylvania adopted the definition of first degree murder as "all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing." Id. at 773 (quoting 4 Journal of the Senate 80 (Pa. 1794)).
The Pennsylvania model was very influential, and New York amended its murder statute later in the century to distinguish first degree and second degree murder. First degree murder then included intentional killings only when done from a "deliberate and premeditated design to effect the death of the person killed, or of any human being." 3 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 1, § 5 (1875). Second degree murder encompassed killings committed "intentionally but without deliberation and premeditation." Id. Because the legislature focused exclusively on premeditation and deliberation in differentiating degrees of murder, unintentional
homicides were still ranked as first degree murder. The higher culpability attached to such killings by legislation probably helps explain the emergence of authority in the nineteenth century that required a depraved heart killer to create a risk of death to more than one person. This authority influenced Mississippi decisions for some time. Seeinfra note 281.
73. 72 Penitentiary Code, supra note 67, tit. 2, § 4; cf. Miss. Code Ann. § 97-3-19 (2000):
(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
(a) When done with deliberate design to effect the death of the person killed, or of any being;
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual;
(c) When done without any design to effect death by any person engaged in the commission of any felony [other than the felonies listed for capital murder]. Id. The original statute followed the New York statute verbatim except that it substituted "eminently" for "imminently." See 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 1, § 5(2) (1829).
74. 73 Penitentiary Code, supra note 67, tit. 2, § 5 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 1, § 6 (1829)). This statute, as later amended to apply to all persons, not only residents, who agreed in the state to fight a duel outside the state, is retained as Miss. Code Ann. § 97-3-23 (2000).
75. 74 Penitentiary Code, supra note 67, tit. 3, § 1 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 1 (1829)).
76. 75 Id. § 2:
Such homicide is justifiable when committed by public officers and those acting by their command, in their aid and assistance, either
1. In obedience to any judgement of a competent court; or,
2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or to the discharge of any other legal duty; or,
3. When necessarily committed in re-taking felons who have been rescued, or who have escaped; or,
4. When necessarily committed in arresting felons fleeing from justice.Id. This copied 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 2 (1829). These defenses are retained with slight rephrasing in the current laws. Miss. Code Ann. § 97-3-15(1)(a)-(d).
77. 76 There is obviously much duplication in the list of circumstances establishing a defense of justification. The code separately listed situations applicable to public officers and their agents and then listed those that applied to all persons. "Such homicide is also justifiable when committed by any person in either of the following cases: 1. When resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling-house in which such person shall be . . . ." Penitentiary Code, supra note 67, tit. 3, § 3 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 3(1) (1829). The current laws retain this with slight rephrasing. Miss. Code Ann. § 97-3-15(1)(e).
78. 77 Homicide is justifiable:
[w]hen committed in the lawful defence of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there shall be a reasonable ground to apprehend design to commit a felony, or to do some great person injury, and there shall be imminent danger of such design being accomplished . . . . Penitentiary Code, supra note 67, tit. 3, § 3(2) (copying 2 Rev. Stat. N.Y. pt. 4,
ch. 1, tit. 2, art. 1, § 3(2) (1829)). The current law extends the privilege to defend others "to any other human being," a change introduced in 1856. Miss. Code Ann. § 97-3-15(f); see Rev. Code Miss. ch. 64, § 34, art. 168 (1857).
79. 78 Homicide is justifiable "[w]hen necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed; or in lawfully suppressing any riot; or in lawfully keeping and preserving the peace." Penitentiary Code, supra note 67, tit. 3, § 3(3) (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 3(3) (1829)). These are retained with slight rephrasing. Miss. Code Ann. § 97-3-15(g)-(h).
80. 79 Penitentiary Code, supra note 67, tit. 3, § 4(1) ("Such homicide is excusable when committed-- 1. By accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent . . . .") (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 4(1) (1829).
The special references to correcting children and servants was removed in 1985. See Act of March 21, 1985, ch. 380, § 1, 1985 Miss. Laws 138, 138. The general defense is preserved. See Miss. Code Ann. § 97-3-17 ("The killing of any human being by the act, procurement, or omission of another shall be excusable: (a) When committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent . . . .").
Common law authorities were fascinated by cases where physical pain and injuries, permitted for the purpose of disciplining servants and children, resulted in unintended death. "If the master designeth moderate correction to his servant, and accordingly useth it, and the servant by some misfortune dieth thereof, this is not murder, but per infortunium, because the law alloweth him to use moderate correction, and therefore the deliberate purpose thereof is no ex malitâ praecogitatâ." 1 Hale, supra note 12, at 454. Hale maintained that immoderate or unreasonable correction might be murder "if done with deliberation and design" or manslaughter "if done hastily, passionately, and without deliberation." Id. For Blackstone, however, express malice was demonstrated by the very fact of "excessive correction." See 4 Blackstone, supra note 8, at *199 (citing cases of murder where the victim was dragged by a horse, struck with an iron bar, and stamped in the belly).
It is not clear to me whether the authorities were concerned with a practical problem of allocating spheres of permissible injury or whether the issue attracted their attention because it threatened to challenge the absolute character of the presumption of malice from an intent to inflict serious injury. It is obvious, however, that slaveholders and their agents who depended on the frequent administration of severe injuries would want a liberal defense for homicide resulting from correcting a servant.
81. 80 Penitentiary Code, supra note 67, tit. 3, § 4(3) ("Such homicide is excusable when committed . . . [b]y accident and misfortune, in heat of passion, upon any sudden and sufficient provocation, or upon any sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.") (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 4(2) (1829)). See infra text at note 222 (discussing relationship between excusable homicide and voluntary manslaughter).
The current laws retain this defense, but the recodification of this defense over the years resulted in a separate enumeration of provoked and sudden combat killings. Cf. Miss. Code Ann. § 97-3-17 (making homicide excusable "(b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation; (c) When committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner"). Under this formulation, the special qualifications of no undue advantage, no dangerous weapon, and no cruel and unusual manner were restricted to sudden-combat killings. In the original, however, these appear to be more general restrictions for all such excusable homicides, and their absence would presumably have resulted in the homicide being treated as manslaughter (as it would have been at common law).
82. 81 4 Blackstone, supra note 8, at *199.
83. 82 Penitentiary Code, supra note 67, tit. 3, § 10 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 15 (1829)). Heat of passion killings that were neither cruel nor unusual but that did not qualify as excusable homicide were fourth degree manslaughter. See infra text accompanying note 198.
84. 83 Id. § 12 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 17 (1829)). The two statutes were subsequently consolidated and are retained as Miss. Code Ann. § 97-3-35 ("The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.").
85. 84 This may have been the legislature's objective when it substituted "without malice" for "without design." See supra note 72 and accompanying text.
86. 85 Though this is the most obvious conclusion from the wording and structure of the statute, the supreme court insisted on construing the old terminology "premeditated design" as meaning no more than malice at common law. See McDaniel v. State, 16 Miss. (8 S. & M.) 401 (1847).
87. 86 Penitentiary Code, supra note 67, tit. 3, § 20 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 20 (1829)); see 2 Chitty, supra note 34, at *731 (maintaining that killing where "no undue advantage" was taken was manslaughter); 1 William Oldnall Russell, A Treatise on Crimes & Indictable Misdemeanors *495 (observing that it was murder where undue advantage was taken during mutual combat). The New York statute modified the law by reducing the former case to excusable homicide and the latter to manslaughter.
88. 87 Penitentiary Code, supra note 67, tit. 3, § 6 (codified as amended at Miss. Code Ann. § 97-3-29 (changing "any other" to "another")). First degree manslaughter was punished by imprisonment "for a term not less than seven years." Id. § 20(1).
89. 88 People v. Rector, 19 Wend. 569, 607-08 (N.Y. Sup. Ct. 1838) (construing New York statute to impose manslaughter liability on persons who killed accidentally while committing misdemeanor); cf. 2 Joel Prentiss Bishop, Commentaries on the Criminal Law 421 (Boston, Little, Brown & Co. 1858) (observing that
elements of murder under New York statute reduced certain crimes that would have been murder at common law to manslaughter).
90. 89 Killings without design by misdemeanants would not have been murder at common law. On the other hand, the killing of such a misdemeanant might have been murder at common law when committed without premeditation yet with malice because there was no privilege to employ deadly force to apprehend or stop a misdemeanant. The statute's requirement that the killing be "without design" is troubling. It may have meant that no general intent needed to be proved, but it is more likely that it meant that a killing with design (or "premeditated design") would qualify as murder.
91. 90 See infra note 92.
92. 91 Penitentiary Code, supra note 67, tit. 3, § 13 ("The involuntary killing of a human being, by the act, procurement, or culpable negligence, of another, while such other person is engaged in the commission of a trespass or other injury to private rights or property, or engaged in an attempt to commit such injury, shall be deemed manslaughter in the third degree.") (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 18 (1829)). This is retained in current laws with a change that makes explicit that the victim, not the killer, is the trespasser. Miss. Code Ann. § 97-3-33 ("The involuntary killing of a human being . . . while such human being is engaged in the commission of a trespass or other injury to private rights or property, or is engaged in an attempt to commit such injury, shall be manslaughter.").
93. 92 Miss. Code Ann. § 97-3-29 ("The killing of a human being without malice, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of any crime or misdemeanor not amounting to felony, or in the attempt to commit any crime or misdemeanor, where such killing would be murder at common law, shall be manslaughter."). Captions in early codes declared the statute applied to misdemeanant-victims, cf. Miss. Code ch. 20, § 991 (1930) ("[H]omicide--killing while the slain was committing a misdemeanor"), but a supreme court decision, State v. Proctor, 59 So. 890 (1912), was eventually read as providing some authority for construing it as embodying the doctrine of misdemeanor manslaughter. In that case, the supreme court affirmed a trial court's refusal to give felony murder instructions where a mother died from an illegal abortion but maintained that "[t]he crime which defendant intended . . . would be manslaughter [citing the section pertaining to killing of quick child]." Proctor, 59 So. at 891. The court then inexplicably concluded that "[s]ection 1233 [killing while such other engaged in misdemeanor] was intended to meet such cases." Id. Since killing an unborn, quick child was a felony and not a misdemeanor, the court's decision may have meant to cite former section 1232 (precursor of today's statute, Miss. Code Ann. § 97-3-27 (2000)), understood as imposing liability for felony manslaughter.
The court subsequently held squarely that an unintentional death caused during the commission of three misdemeanors was not murder. See Dixon v. State, 61 So. 423, 424 (1913) (holding that unlawful discharge of gun resulting in death was not misdemeanor manslaughter where misdemeanors were mala prohibita not mala in se and where death was not the natural and probable result of the misdemeanors).
The (inept) annotation of Dixon and the generous construction of the dictum in Proctor apparently led the editors to re-designate the statute. See Miss. Code Ann. § 11-1-2221 (1942) ("[H]omicide--killing while the slayer was committing misdemeanor").
Today's code continues to designate this statute as a misdemeanor manslaughter provision. Cf. Miss. Code Ann. § 97-3-19 (2000) ("Homicide; killing while committing a misdemeanor"). Headings in the code are not law. See Mayfield v. State, 612 So. 2d 1120, 1131 (Miss. 1992) (Banks, J., concurring in part and dissenting in part) (cautioning that title of statute is work of codifiers, not legislature, and should not be controlling in construction). The redesignation of this statute as a misdemeanor manslaughter statute has apparently never been challenged and has been embraced by prosecutors and courts. Cf. Jones v. State, 678 So. 2d 707, 710 (Miss. 1996) (en banc) (reversing on evidentiary grounds but holding that child's death from ingestion of cocaine supported finding of culpable negligence in prosecution for manslaughter while engaged in criminal abuse or neglect).
The misdemeanor manslaughter construction was adopted in older model jury instructions. See Miss. Cir. Ct. Judge's Ass'n & The Miss. Judicial Coll., Univ. of Miss. Law Ctr., Mississippi Model Jury Instructions: Civil and Criminal No. 114.09 (1977). For years, however, the instruction pertaining to section 97-3-29 has erroneously duplicated the text for the preceding instruction. Compare Miss. Judicial Coll., Mississippi Model Jury Instructions: Criminal § 8:9 (2001) [hereinafter Model Jury Instructions], with id. § 8.10.
94. 93 See infra note 120 and accompanying text.
95. 94 Penitentiary Code, supra note 67, tit. 3, § 11.
96. 95 See generally 4 Blackstone, supra note 8, at *191 (classifying unnecessary self defense as manslaughter because the provocation negates any inference of "previous malice"); LaFave, supra note 10, § 7.11(a), at 718-19.
97. 96 "Every person who shall unnecessarily kill another, either[:] 1. While resisting an attempt by such other person to commit any felony, or to do any other unlawful act: or, 2. After such attempt shall have failed, [--]shall be deemed guilty of manslaughter in the second degree." Penitentiary Code, supra note 67, tit. 3, § 11 (1840) (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 16 (1829)). This is retained in current laws. See Miss. Code Ann. § 97-3-31 ("Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter."). See generally Wells v. State, 305 So. 2d 333, 336 (Miss. 1974) (discussing evolution of court's construction of this statute).
LaFave observes that other common law jurisdictions reached a similar result as a result of case law. LaFave, supra note 10, § 7.11(b), at 719 n.11 (citing cases).
98. 97 Penitentiary Code, supra note 67, tit. 3, § 7 ("Every person deliberately
assisting another in the commission of self-murder, shall be deemed guilty of manslaughter in the first degree.") (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 7 (1829)). Assisting suicide today is a separate felony from manslaughter and consists of assisting another to take his or her life, taking another's life, or attempting to take another's life. Miss. Code Ann. § 97-3-49. Prohibited conduct includes advising, encouraging, abetting, or assisting. Id.
99. 98 Quickening denotes the point during gestation at which motion is detected, usually about halfway through pregnancy. See Black's Law Dictionary 1261 (7th ed. 1999). Fetuses before quickening were not protected; indeed the state would execute a pregnant woman unless a jury of physicians determined that quickening had occurred. See Penitentiary Code, supra note 67, tit. 2, §§ 19-21 (discussing execution of pregnant females) (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, §§ 20-22 (1829)). But two separate statutes punished the killing of unborn quick children. The first punished as first degree manslaughter the wilful killing of an unborn quick child by injury to the mother that would have been murder if it had resulted in the death of the mother. Id. tit. 3, § 8 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 8 (1829)). This is preserved verbatim in Miss. Code Ann. § 97-3-37(1). The second punished as second degree manslaughter abortions of unborn quick children unless necessary to save the life of the mother or unless advised by two physicians as necessary to save the life of the mother. Penitentiary Code, supra note 67, tit. 3, § 9 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 9 (1829)). This second statute is unconstitutional as applied to voluntary, lawful abortions prior to viability. Roe v. Wade, 410 U.S. 113, 147-66 (1973) (holding unconstitutional statutes prohibiting abortion prior to viability). It has been repealed and replaced by legislation. Seeinfra text accompanying notes 175-81 (discussing its repeal); Miss. Code Ann. § 97-3-37(1).
100. 99 Penitentiary Code, supra note 67, tit. 3, § 14 (establishing such acts as third degree manslaughter) (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 14 (1829)) (codified as amended at Miss. Code Ann. § 97-3-45).
101. 100 Id. tit. 3, § 15 (classifying the crime as third degree manslaughter) (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 15 (1829)) (codified as amended at Miss. Code Ann. § 97-3-45).
102. 101 Id. tit. 3, § 16 (classifying the crime as third degree manslaughter) (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 16 (1829)). This statute, as later revised to include steam-driven railroad engines, is retained as Miss. Code Ann. § 97-3-43.
103. 102 Penitentiary Code, supra note 67, tit. 3, § 17 (providing intoxicated physician causing death without design by administering poison, drug, or medicine, or doing any other act that causes death is guilty of third degree manslaughter) (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 17 (1829)). Section 17 has been retained with changes in Miss. Code Ann. § 97-3-39 (adding surgery to prohibited acts).
104. 103 Penitentiary Code, supra note 67, tit. 3, § 19 (copying with minor changes 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 19 (1829)); cf. Miss. Code Ann. § 97-3-47 ("Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter"). Fourth degree manslaughter was punished either by fine or imprisonment for up to two years. Penitentiary Code, supra note 67, tit. 3, § 21 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 21 (1829)).
105. 104 Act of March 1, 1854, ch. 50, § 1, 1854 Miss. Laws 154, 154 (providing for New Code of Laws for State of Mississippi); see Rev. Code Miss. Introduction (1857) (summarizing historical background of this legislation). The commissioners were William L. Sharkey, William L. Harris, and Henry T. Ellett. § 1, 1854 Miss. Laws at 154. The commission presented a report and recommendations to the legislature in January 1856. Id. Business was continued in a special session that lasted sixty days and "resulted in the adoption of the laws contained in the present volume." Id.
Although the code referred to numerous printed drafts of components of the code, the University of Mississippi Law Library holdings do not include any of them and reference librarians were unable to locate any at the state archives.
106. 105 I have consulted all the relevant volumes of session laws available at the University of Mississippi Law Library, but the holdings of laws from 1848 to 1856 is apparently not complete, so it is possible that amendments to the criminal statutes preceded the recodification of the general laws.
107. 106 Rev. Code Miss. ch. 64, § 34, art. 165 (1857) (emphasis added). This is retained verbatim in Miss. Code Ann. § 97-3-19(1)(a)-(b).
108. 107 See supra note 72 and accompanying text.
109. 108 Rev. Code Miss. ch. 64, § 34, art. 165 (1857).
110. 109 Id. § 6, art. 11 (stating any person guilty of willfully setting fire or burning at night the dwelling of another shall face capital punishment).
111. 110 Id. § 16, arts. 218-19 (stating that forcible unlawful carnal knowledge of a woman or child under ten is punishable by life imprisonment).
112. 111 Id. § 46, art. 44 (stating that burglary is punishable by up to fifteen years imprisonment). Forgery was punished as severely as burglary, up to fifteen years. Id. § 31, art. 124. The omission of forgery is probably due to the fact that the legislature assumed implicitly that the predicate felony causing the death must be inherently dangerous.
113. 112 Id. § 47, art. 222 (stating robbery is punishable by up to ten years in prison).
114. 113 E.g., id. § 36, art. 186 (stating kidnapping is punishable by up to ten years in prison).
115. 114 Id. § 34, art. 170.
116. 115 See supra notes 87-92 and accompanying text.
117. 116 Rev. Code Miss. ch. 64, § 34, art. 170 (1857).
118. 117 Id.
119. 118 See, e.g., Mansell and Herbert's Case, 73 Eng. Rep. 279 (KB 1558) (holding that unintentional death caused by deliberate act of violence during felony was murder). See generally Ashworth, supra note 36, § 7.3(b) (discussing felony murder rule at common law).
120. 119 The revisers of the Code in 1892, 1906, 1917, 1927, and 1930 designated this section as establishing liability for "killing while the slain was committing a felony." Miss. Code ch. 20, § 990 (1930) (emphasis added); see also Miss. Code Ann. ch. 16, § 1011 (1927); Miss. Code Ann. ch. 15, § 962 (1917); Miss. Code ch. 28 § 1232 (1906); Miss. Code Ann. ch. 29, § 1154 (1892).
Without explanation, this statute was retitled in 1942 as "Manslaughter--killing while the slayer was committing a felony other than those specified." Miss. Code Ann. § 11-1-2220 (1942). Although over one hundred cases were annotated under this section, virtually none of them had any relevance. Only the prosecutions for the death of a woman resulting from illegal (felonious) abortions might have involved this statute. But those cases were actually prosecuted not under this statute but under the general manslaughter statute for "culpable negligence." Compare Lackey v. State, 60 So. 2d 503, 505 (Miss. 1952) (affirming manslaughter conviction for death resulting from illegal abortion where jury was given instruction under involuntary manslaughter statute requiring finding of act, omission, or culpable negligence, not felony-manslaughter instruction), with Lee v.
State, 86 So. 856, 857-58 (Miss. 1921) (holding death of woman resulting from illegal abortion was either murder if caused by act eminently dangerous to and evincing depraved heart regardless of human life or manslaughter if caused by act, procurement, or culpable negligence). The Lackey opinion was understood at the time as authority that depraved heart murder was not available for dangerous acts directed towards an individual. T.E. Douglas & George Gleason, The Work for the Mississippi Supreme Court for the 1950-51 Term, 23 Miss. L.J. 253, 258 (1952).
Recent opinions assume that the statute incorporates the doctrine of felony manslaughter, though that construction was apparently not challenged. E.g., Jackson v. State, 684 So. 2d 1213, 1227, 1229 (Miss. 1996) (affirming conviction of capital murder but apparently assuming felony manslaughter would apply in absence of aggravating factors that justified refusal to instruct on lesser included offense); Blue v. State, 674 So. 2d 1184, 1200-01 (Miss. 1996) (holding felony manslaughter instruction properly rejected where predicate felony was omitted by statute and there was no evidence killing was "without malice"); Butler v. State, 608 So. 2d 314, 319-20 (Miss. 1992) (holding felony manslaughter instruction required in felony murder prosecution where predicate felony not omitted by statute).
121. 120 Rev. Code Miss. ch. 64, § 34, art. 183 (1857).
122. 121 The sentencing rules adopted in 1839 provided that where a statute authorized imprisonment for a term not less than any specified number of years, "the court authorised to pronounce judgment upon such conviction, may, in its discretion, sentence such offender to imprisonment during his natural life, or for any number of years not less than such as are prescribed." Penitentiary Code, supra note 67, tit. 3, § 12. Though this provision was apparently not included in the code after revision, it expressed the prevailing view that the court rather than the jury determined the sentence upon conviction. See id. § 20 (discussing sentencing guidelines without mentioning who imposes sentence).
123. 122 See supra notes 71-72, 82-85 and accompanying text.
124. 123 Rev. Code Miss. ch. 64, § 34, art. 170 (1857).
125. 124 Id. arts. 174, 176.
126. 125 Id. art. 170.
127. 126 This does not explain why "without malice" was required for the related felony manslaughter statute. See id. In that context, the lack of malice is either logically impossible, malice being provided by definition by the commission of a felony, or it is silly. See supra notes 27, 35 and accompanying text. It is not likely that the legislature wanted generally to mitigate liability for hot-blooded felons unless they were anticipating some elaborate circumvention of voluntary manslaughter by means of the felony murder doctrine.
128. 127 Rev. Code Miss. ch. 64, § 34, art. 174 (1857). This is retained as part of Miss. Code Ann. § 97-3-35 (2000).
129. 128 Rev. Code Miss. ch. 64, § 34, art. 176 (1857). This is retained as part of Miss. Code Ann. § 97-3-35.
130. 129 See Rev. Code Miss. ch. 64, § 34, arts. 171-172, 177, 182 (1857) (lacking requirement of "without malice").
131. 130 Edward Mayes, Ribs of the Law, Being a Series of Concise Statements of the Outlines for Legal Study for the Service of Law Students 105 (1909). Mayes, son-in-law of United States Supreme Court Justice L.Q.C. Lamar, had retired as dean of the law school and as chancellor of the University when this book was published, but its subtitle indicates that it derived from his introductory law lectures.
132. 131 McDaniel v. State, 16 Miss. (8 S. & M.) 401, 409 (1847) (opining that premeditated design meant malice aforethought); see also Hawthorne v. State, 58 Miss. 778, 784 (1881) (stating that phrases are "used convertibly"); Ex parte Wray, 30 Miss. 673, 678 (1856) (opining that express malice meant sedate, deliberate mind and formed design to kill another).
The court further held that malice was a necessary element of murder. Guest v. State, 52 So. 211, 212 (Miss. 1910); see Carter v. State, 25 So. 2d 470, 473 (Miss. 1946) (stating that difference between murder and manslaughter is presence of deliberation and malice in murder and its absence in manslaughter); see also Brown v. State, 1999-KA-00058-COA, ¶¶ 8-28, 768 So. 2d 312, 315-19 (Miss. Ct. App. 1999) (discussing cases defining deliberate design).
133. 132 See Tran v. State, 681 So. 2d 514, 517 (Miss. 1996) (explaining that in Mississippi case law all three terms mean same thing); see also Neal v. State, 2000-KA-01291-SCT, ¶¶ 14-18, 805 So. 2d 520, 525 (Miss. 2002) (holding that in absence of voluntary manslaughter instruction, defining deliberate design so as not to require its existence for any length of time before the act of violence was, if error at all, harmless); Taylor v. State, 1999-KA-01308-SCT, ¶ 15, 795 So. 2d 512, 516 (Miss. 2001).
134. 133 Russell v. State, 1999-KA-00566-SCT, ¶ 12, 789 So. 2d 779, 782 (Miss. 2001) (holding trial court erred in refusing requested instruction defining malice aforethought as "full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences; to calculate, plan, contemplate").
135. 134 The history of this doctrine in Mississippi recapitulated in miniature the common law experience. First the courts understood malice as requiring deliberate design that preceded the killing. Bangren v. State, 17 So. 2d 599, 600 (Miss. 1944). Then the courts found that malice and deliberate design could be formed at the time of the killing, Carter, 25 So. 2d at 473, and that no malice other than deliberate design was required. Hughes v. State, 42 So. 2d 805, 807-08 (Miss. 1949); Criss v. State, 30 So. 2d 613, 614-15 (Miss. 1947). It followed that malice could be implied from the use of a deadly weapon. Dickins v. State, 43 So. 2d 366, 373-74 (Miss. 1950); Smith v. State, 38 So. 2d 725, 726 (Miss. 1949).
136. 135 "The definition of murder is unlawful homicide with malice aforethought; and the words malice aforethought are technical. You must not, therefore construe them or suppose that they can be construed by ordinary rules of language." Keedy, supra note 71, at 759 n.2 (quoting jury instruction in Regina v. Serné, 16 Cox Crim. Cas. 311, 312 (Eng. Cent. Crim. Ct. 1887)).
137. 136 See, e.g., Lancaster v. State, 472 So. 2d 363, 367 (Miss. 1985); Dye v. State, 90 So. 180, 181 (Miss. 1922).
138. 137 Model Jury Instructions, supra note 92, § 8:1. This is the first instruction and is presumably given frequently.
139. 138 Id. § 8:2.
140. 139 Id. § 8:3.
141. 140 Id. § 8:8 (killing while committing felony); id. § 8:12 (heat of passion); id. § 8:13 (lesser included voluntary manslaughter).
142. 141 Act of April 23, 1974, ch. 576, § 6, 1974 Miss. Laws 863, 865 (establishing a class of crimes known as capital murder and providing the penalty of death as punishment thereof).
143. 142 Rev. Code Miss. ch. 64, § 34, art. 167 (1857) ("Every person who shall be convicted of murder, shall suffer death.").
144. 143 See supra notes 120-21 and accompanying text.
145. 144 Act of March 4, 1875, ch. 58, § 2, 1875 Miss. Laws 79, 79.
146. 145 Although the Mississippi Supreme Court held that a jury must be instructed on the consequences of its failure to agree if so requested, Walton v. State, 57 Miss. 533, 535-36 (1879), it affirmed a capital sentence where the jury returned a verdict of guilty and added the words that it pleaded "the mercy of the court." Penn v. State, 62 Miss. 450, 467-69 (1884).
147. 146 Act of April 17, 1906, ch. 248, 1906 Miss. Laws Spec. Sess. 281, 281 (adding "[o]r unless the jury shall certify its disagreement as to the punishment as provided by section 1439, in which case the court shall fix a punishment at imprisonment for life" to section 1151 of the Code of 1906). The change was effected by amending the final revisions to the proposed 1906 Code rather than by revisions to the 1892 Code.
148. 147 Furman v. Georgia, 408 U.S. 238 (1972) (per curiam) (overruling McGautha v. California, 402 U.S. 183 (1971)); see U.S. Const. amend. VIII ("[N]or [shall] cruel and unusual punishments [be] inflicted."). Justices Brennan and Marshall opined that the death penalty per se was unconstitutional. Furman, 408 U.S. at 291-95 (Brennan, J., concurring); id. at 358-59 (Marshall, J., concurring). Justices Douglas, Stewart, and White held that death penalty regimes were unconstitutional as applied because the actual imposition of death was arbitrary. Id. at 255-57 (Douglas, J., concurring); id. at 309-10 (Stewart, J., concurring); id. at 313 (White, J., concurring); see also id. at 309-10 (Stewart, J., concurring):
These death sentences are cruel and unusual in the same way that being struck by lightening is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist each filed dissenting opinions. See id. at 375 (Burger, C.J., dissenting); id. at 405 (Blackmun, J., dissenting); id. at 414 (Powell, J., dissenting); id. at 465 (Rehnquist, J., dissenting).
After Furman, state legislatures revised death penalty schemes in an effort to restrict discretion and reduce arbitrary results. The Supreme Court upheld Georgia's system under which a jury imposing the death sentence was required to find the presence of statutory aggravating circumstances, and the state court reviewed death sentences to determine whether the judgment was the result of passion, prejudice, or other improper motive, and whether the judgment was excessive or disproportionate as compared to penalties in other similar cases. Gregg v. Georgia, 428 U.S. 153, 206-07 (1976); see Arave v. Creech, 507 U.S. 463, 471 (1993) (holding that capital sentencing schemes must have clear objective standards); Lewis v. Jeffers, 497 U.S. 764, 774 (1990) (stating that capital sentencing scheme must suitably direct and limit discretion "so as to minimize the risk of wholly arbitrary and capricious action") (quoting Gregg, 428 U.S. at 189).
149. 148 Act of April 23, 1973, ch. 576, 1974 Miss. Laws 863.
150. 149 Miss. Code Ann. § 99-19-101(7)(a)-(d) (2000).
151. 150 Id. § 99-19-101(2)(b). The jury must so find unanimously and in writing. Id. § 99-19-101(3)(b).
152. 151 Id. § 99-19-101(3)(c).
153. 152 "The State must `channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance, and that make rationally reviewable the process for imposing a sentence of death.'" Arave, 507 U.S. at 471 (quoting Lewis, 497 U.S. at 774 (quoting Godfrey v. Georgia, 446 U.S. 420, 428 (1980))).
154. 153 Miss. Code Ann. § 99-19-101(5)(d). Authorizing the death penalty for killing without design during the commission of certain felonies but not for premeditated murder committed in an atrocious way is not in violation of proportionality under the Eighth Amendment. Holland v. State, 93-DP-00494-SCT, ¶¶ 5-11, 705 So. 2d 307, 319-20 (Miss. 1997). The court's reasoning included the suggestion that the death penalty might be a more effective deterrent for felony murders than for atrocious simple murders. Holland, 93-DP-00494-SCT, ¶ 10, 705 So. 2d at 320.
155. 154 Miss. Code Ann. § 99-19-101(5)(f). Robbery and pecuniary gain should not be counted as two separate factors because robbery is necessarily committed for gain. See Booker v. State, 92-KA-00877-SCT, ¶¶ 14-15, 699 So. 2d 132, 135-36 (Miss. 1997); Blue v. State, 674 So. 2d 1184, 1219-20 (Miss. 1996).
156. 155 Miss. Code Ann. § 99-19-101(5)(h).
157. 156 Shell v. Mississippi, 498 U.S. 1, 2-3 (1990) (per curiam) (holding insufficient to cure vagueness limiting instructions defining heinous as "extremely wicked or shockingly evil," atrocious as "outrageously wicked and vile," and cruel as "designed to inflict a high degree of pain with indifference to, or even enjoyment of" suffering); see also Clemons v. Mississippi, 494 U.S. 738, 750 (1990) (holding that failure to supply capital jury with properly limiting definition of "especially heinous, atrocious, or cruel" is error); Booker, 92-KA-00877-SCT, ¶¶ 10-15, 699 So. 2d at 135 (reversing and remanding capital murder conviction where "especially heinous, atrocious, or cruel" circumstances as aggravators was improperly applied). But see Arave, 507 U.S. at 471 (holding that "utter disregard for human life" constituted legitimate aggravating circumstance at least as limited by judicial construction to mean "cold-blooded, pitiless slayer"). The dissent in Arave observed that this might be satisfied by every intentional killing. Id. at 479-89 (Blackmun, J., dissenting).
158. 157 The following limiting instruction used in Mississippi is satisfied by a simple finding of an intent to inflict physical or mental pain:
An especially heinous, atrocious or cruel capital offense is one accompanied by such additional acts as to set the crime apart from the norm of murders--the conscienceless or pitiless crime which is unnecessarily torturous to the victim.
If you find from the evidence beyond a reasonable doubt that the defendant utilized a method of killing which caused serious mutilation, or that there was dismemberment of the body prior to death, or that the defendant inflicted physical or mental pain before death, or that there was mental torture or aggravation before death, or that a lingering or torturous death was suffered by the victim then you may find this aggravating circumstance.Crawford v. State, 94-DP-01016-SCT, ¶ 70, 716 So. 2d 1028, 1047 (Miss. 1998). In Crawford, the court approved the instruction, finding that evidence that the defendant stabbed the victim and allowed her to bleed to death after commission of capital felony satisfied the aggravating criteria. Crawford, 94-DP-01016-SCT, ¶¶ 70-74, 716 So. 2d at 1047-48. The court also suggested in dictum that a possible erroneous instruction is not reversible error where the jury found one other criterion present. Id. ¶ 72, 716 So. 2d at 1047. The instruction may be satisfied when the victim lives even briefly with knowledge that the killer is going to kill him or survives an initial wounding even briefly before dying of it or of a second injury. Edwards v. State, 97-DP-00566-SCT, ¶¶ 136-37, 737 So. 2d 275, 315 (Miss. 1999) (reversing on other grounds but opining that evidence was sufficient for finding offense was especially heinous, atrocious, or cruel where one victim was shot in the head, stuffed in trunk, forced to walk and shot fatally and where another victim, two-years old, was shot as he leaned over his father).
159. 158 Miss. Code Ann. § 99-19-101(5)(a)-(b). Commission of a capital offense by a person currently imprisoned for a felony involving use or threat of personal violence satisfies both and may be counted twice. Hughes v. State, 97-DP-00028-SCT, ¶¶ 181-184, 735 So. 2d 238, 277-78 (Miss. 1999). Sentence of imprisonment is satisfied by a person under suspended sentence for grand larceny and burglary. Evans v. Thigpen, 631 F. Supp. 274, 283 (S.D. Miss 1986), aff'd, 809 F.2d 239 (5th Cir. 1987).
160. 159 Miss. Code Ann. § 99-19-101(5)(e). Killing a victim to avoid getting caught satisfies this criterion. Edwards, 737 So. 2d at 320.
161. 160 Miss. Code Ann. § 99-19-101(5)(g).
162. 161 Id. § 99-19-105(5)(c).
163. 162 Id. § 47-7-3(1)(f) ("No person shall be eligible for parole who is charged, tried, convicted and sentenced to life imprisonment under the provisions of Section 99-19-101.").
164. 163 Act of April 23, 1974, ch. 576, § 6, 1974 Miss. Laws 863, 866 (codified as amended at Miss. Code Ann. § 97-3-19(2)(e)).
165. 164 Act of March 29, 1983, ch. 429, § 1, 1983 Miss. Laws 305, 306 (codified as amended at Miss. Code Ann. § 97-3-19(2)(e), (f)).
166. 165 Miss. Code Ann. § 97-3-19(2)(a).
167. 166 Id.
168. 167 Id. (emphasis added). The text in brackets was included as a single line of text in the enrolled bill, H.R. 608, 1992 Leg., 107th Reg. Sess. (Miss. 1992) (on file with Hon. Ed Perry, Clerk of Mississippi House of Representatives), and was evidently dropped by mistake from the final act in 1992. See Act of May 14, 1992, ch. 508, § 1, 1992 Miss. Laws 825, 825-26. The text of an enrolled bill controls over inconsistent text in the session laws or code. Miss. Code Ann. § 1-1-8 (Supp. 2001). But the section has been reenacted without the omitted language. Cf. Act of March 25, 1996, ch. 422, § 3, 1996 Miss. Laws 259, 260-61 (adding employees of Department of Corrections but omitting deputies and other victims omitted by mistake in 1992). The length of the list reinforces the ritual importance of naming certain classes of victims, and the current list is the result of repeated amendments. See Act of April 30, 2000, ch. 516, § 134, 2000 Miss. Laws 667, 722 (substituting "conservation officer" for "game warden"); § 3, 1996 Miss. Laws at 260-61 (adding certain department of corrections employees); § 1, 1992 Miss. Laws at 825-26 (defining peace officer as "any state or federal law enforcement officer"); § 6, 1974 Miss. Laws at 865-66 (specifying forms of homicide for which capital punishment can be imposed, including killing of peace officers or fireman).
169. 168 Miss. Code Ann. § 97-3-19(2)(h) (2000). To be capital murder, the homicide must constitute murder of an elected official "with knowledge that the victim was a public official." Id.
170. 169 Id. § 97-3-19(2)(c).
171. 170 Id. § 97-3-19(2)(b), (d).
172. 171 Act of April 17, 1998, ch. 588, § 1, 1998 Miss. Laws 1006, 1007. This section is currently codified as amended at Miss. Code Ann., § 97-3-19(2)(g) ("Murder which is perpetrated on educational property as defined in Section 97-37-17."). Educational property is broadly defined as
any public or private school building or bus, public or private school campus, grounds, recreational area, athletic field, or other property owned, used or operated by any local school board, school, college or university board of trustees, or directors for the administration of any public or private educational institution or during a school related activity; provided however, that the term "educational property" shall not include any sixteenth section school land or lieu land on which is not located a school building, school campus, recreational area or athletic field.Id. § 97-37-17(1)(a).
173. 172 The statute requires "willful killing of an unborn quick child." Miss. Code Ann. § 97-3-37(1). Despite a prominent annotation proclaiming that "it is not necessary to prove that the defendant knew that the mother was pregnant or that the deceased baby was `quick,'" (first annotation under statute), the case cited holds no such thing. See Sitton v. State, 98-KA-00459-SCT, ¶¶ 15-17, 760 So. 2d 28, 31-32 (Miss. 1999). In Sitton, the defendant deliberately ran over and killed a woman who was seven months pregnant. Sitton, 98-KA-00459-SCT, ¶ 7, 760 So. 2d at 29-30. Evidence showed the woman was visibly pregnant and the fetuses well developed. Id. ¶ 17, 760 So. 2d at 31-32. In affirming the manslaughter convictions, Justice Diaz rejected the argument that there was insufficient evidence that the defendant knew the woman was pregnant or that the fetuses qualified as quick children. Id. ¶¶ 15-17, 760 So. 2d at 31-32. In further dicta, Justice Diaz observed only that other jurisdictions had imposed strict liability on persons who caused deaths of fetuses. Id.
174. 173 Miss. Code Ann. § 97-3-37(1); see supra note 101 (discussing origin of statute). There is no merger where the mother dies, and the killer can be convicted both for the murder of the mother and manslaughter for causing the death of the unborn quick child. State v. Willis, 457 So. 2d 959, 960 (Miss. 1984).
Quickening refers to the first perceivable motion of the fetus in the uterus. Willis v. State, 518 So. 2d 667, 668 (Miss. 1988). In general, this occurs after the first trimester, about half way through the pregnancy. Black's Law Dictionary 1261 (7th ed. 1999); see Willis, 518 So. 2d at 667 (affirming conviction for death of unborn quick child where fetus was almost thirty-two weeks).
175. 174 See supra note 101.
176. 175 See Roe v. Wade, 410 U.S. 113 (1973) (legalizing abortions before certain point in pregnancy); see also supra note 98.
177. 176 Act of April 16, 2000, ch. 337, § 1, 2000 Miss. Laws 114 (amending Miss. Code Ann. § 97-3-37).
178. 177 Miss. Code Ann. § 97-3-37(2)(a). It authorizes a fine of not more than $7500, while the fine authorized for manslaughter is not less than $500 and has no upper limit. Id.
179. 178 Id. § 97-3-37(2)(b) (punishing great bodily harm to embryo or fetus by fine and imprisonment for not more than twenty years); id. § 97-3-37(2)(c) (punishing serious or aggravated physical injury to embryo or fetus by fine and imprisonment for not more than one year); id. § 97-3-37(2)(d) (punishing physical injury to embryo or fetus by fine and not more than ninety days imprisonment).
180. 179 Act of April 6, 1983, ch. 466, 1983 Miss. Laws 403 (codified as amended at Miss. Code Ann. § 63-11-30 (1996 & Supp. 2001)).
181. 180 Miss. Code Ann. § 63-11-30(1)(a)-(e) (Supp. 2001). The original statute defined intoxicated as being "under the influence of intoxicating liquor . . . [or] any other substance which has impaired such person's ability to operate a motor vehicle," or having .10 percent or more parts alcohol in blood. § 7, 1983 Miss. Laws at 406. That definition was revised over time to add persons under the influence of controlled substances, to reduce to .08 and then .02 percent the blood level of alcohol needed for persons below the legal age to purchase alcoholic beverages under state law, and to reduce to .04 percent the blood level needed for persons operating commercial motor vehicles. Miss. Code Ann. § 63-11-30(1).
182. 181 Miss. Code Ann. § 63-11-30(5). The supreme court has made clear that negligence in this statute requires nothing more than simple negligence and does not require the culpable negligence required for manslaughter. Banks v. State, 525 So. 2d 399, 400 (1988).
183. 182 Miss. Code Ann. § 63-11-30(5) (defining crime as committed where person
under the influence operates motor vehicle and in negligent manner "causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose or any other limb, organ or member of another"). The court held the injury requirement satisfied by a broken pelvis where there was evidence that the injuries would have been life-threatening without medical intervention and the victim suffered a limp and some continuing pain at the time of trial. Holloman v. State, 656 So. 2d 1134, 1140 (Miss. 1995).
184. 183 § 13, 1983 Miss. Laws at 409.
185. 184 Mayfield v. State, 612 So. 2d 1120, 1124-26 (Miss. 1992). The court held in reasoning based partly on erroneous reliance on the title given the statute by the code, and questioned by the dissent, that this offense proscribes drunk driving rather than negligent killing. Mayfield, 612 So. 2d at 1128. Accordingly, it held that a person who killed two persons could be convicted only of a single count. Id.
186. 185 Act of April 21, 1989, ch. 565, § 1, 1989 Miss. Laws 755, 757 (punishing aggravated DUI with ten years imprisonment). But see Miss. Code Ann. § 63-11-30(5) (making maximum imprisonment for aggravated DUI twenty-five years); cf. Miss. Code Ann. § 97-3-25 (2000) (making imprisonment for manslaughter twenty years). The former penalties prescribed for driving under the influence were held not to constitute cruel or unusual punishment. SeeHolloman, 656 So. 2d at 1138; Banks, 525 So. 2d at 403. That case may not clearly control today, however, for through a combination of case law and statutory changes, the person who negligently causes an injury (e.g., a limp and some pain) is now subject to a mandatory punishment at levels far exceeding those for causing death with culpable negligence, and the level of intoxication has been reduced for minors. These changes raise new issues of proportionality not decided by prior cases.
187. 186 Act of May 20, 2000, ch. 542, § 3, 2000 Miss. Laws 832, 840 (codified as amended at Miss. Code Ann. § 63-11-30(5) (Supp. 2001)).
188. 187 See Miss. Code Ann. § 97-3-25 (2000).
189. 188 See supra notes 163-64 and accompanying text.
190. 189 See supra notes 165-71 and accompanying text (discussing relevant statutes).
191. 190 See Miss. Code Ann. § 97-3-19; see also supra note 75.
192. 191 Miss. Code Ann.. § 97-3-19(1)(c); see supra note 6 (quoting statute).
193. 192 Miss. Code Ann. § 97-3-47; see supra note 92 (discussing the origin of this statute).
194. 193 Craig v. State, 520 So. 2d 487, 491 (Miss. 1988) ("Miss. Code Ann. § 97-3-47 is an involuntary manslaughter statute . . . .").
195. 194 Miller v. State, 97-KA-00072-COA, ¶ 14, 733 So. 2d 846, 850 (Miss. Ct. App. 1998) ("While much of the reported case law on Section 97-3-47 deals with manslaughter convictions based on the theory of culpable negligence, we are satisfied that the language is sufficient to encompass the other general form of common law involuntary manslaughter."). The court held that the statute applied where the defendant's action in striking the victim was unprovoked and intentional but not where "one blow with a fist would not, in the normal circumstance, be expected to produce a death. Neither does the striking of another with a fist, in the normal circumstance, rise to the level of a felony." Miller, 97-KA-00072-COA, ¶ 14, 733 So. 2d at 850.
196. 195 Miss. Code Ann. § 97-3-47 (emphasis added).
197. 196 Penitentiary Code, supra note 67, tit. 3, § 19 (emphasis added); see supra text at note 103 for full text of this statute.
198. 197 Id. § 18.
199. 198 Id. § 19
200. 199 Miss. Code Ann. § 97-3-27.
201. 200 Id. § 97-3-29.
202. 201 Id. § 97-3-31.
203. 202 Id. § 97-3-33.
204. 203 Id. § 97-3-39.
205. 204 Id. § 97-3-41.
206. 205 Id. § 97-3-43.
207. 206 Rev. Code Miss. ch. 64, § 34, art. 182 (1857) (emphasis added).
208. 207 It is true that Justice Smith paid lip service to this language when holding that a manslaughter instruction was properly omitted in a murder trial: "By its own terms, the section applies only when the other provisions of Chapter 97, Title 3 do not." Hurns v. State, 616 So. 2d 313, 320 (Miss. 1993). But the court grounded its decision on the fact that "[t]he evidence does not support a finding that Hurns possessed only the lesser degree of culpability covered by the culpable negligence statute." Hurns, 616 So. 2d at 321.
209. 208 In Craig v. State, the defendant admitted to killing with simple negligence in violation of the aggravated vehicular homicide statute (then punishable by five years imprisonment). 520 So. 2d 487, 491 (Miss. 1988). The court held that
defendant's negligence did not rise to the culpability level required for manslaughter. Craig, 520 So. 2d at 492-93. The court might have pointed out, however, that if section 97-3-27 codifies a doctrine of felony manslaughter, then defendant's admission on appeal might have supported a conviction properly indicted under that statute. See supra note 114.
210. 209 Penitentiary Code, supra note 67, tit. 3, §§ 10-12. See supra notes 85-86.
211. 210 Penitentiary Code, supra note 67, tit. 3, § 18 (emphasis added).
212. 211 Id. A close reading of the statutes together might permit a prosecution for involuntary, barehanded, non-cruel homicide where there was insufficient provocation.
213. 212 See supra note 123 and accompanying text.
214. 213 See supra note 106 and accompanying text.
215. 214 See supra note 197 and accompanying text (discussing origin of defense in 1839).
216. 215 Rev. Code Miss. ch. 64, § 34, art. 168 (1857). This was included among other justifications and also repeated in the elements of manslaughter. Id. arts. 174, 176.
217. 216 Id. art. 169.
218. 217 Id. arts. 165, 169, 174, 176.
219. 218 See generally id. § 34.
220. 219 Penitentiary Code, supra note 67, tit. 2, § 3(2).
221. 220 See supra notes 32 and 56.
222. 221 Although Coke could be read as suggesting that any death resulting from an unlawful intent to injure was murder, see generally 3 Stephen, supra note 11, at 57, by the eighteenth century, death resulting from an unlawful act not amounting to felony was manslaughter, and even a death that might otherwise be counted as murder could be "alleviated" to manslaughter when it was the involuntary consequence of an unlawful act. See 4 Blackstone, supra note 8, at *201. "[I]t is almost universally held, as a specific instance of unlawful-act manslaughter, that one is guilty of involuntary manslaughter who intentionally inflicts bodily harm upon another person, as by a moderate blow with his fist, thereby causing an unintended and unforeseeable death to the victim . . . ." LaFave, supra note 10, § 7.13(d), at 734. LaFave criticizes the soundness of this doctrine. Id. at 735. See generally 3 Stephen, supra note 11, at 57.
223. 222 Jack Katz, Seductions of Crime 33 (1988) (providing examples of deliberate killings where the killers wanted to achieve transcendent goals other than or in addition to the death of the victim).
My construction of the 1839 statute assumes that the word "or" provides an alternative only for provocation and combat and does not introduce a new phrase. This reading is supported, circularly, by my reasoning about the intent of the drafters. It is also supported by a close reading of the same grammatical form employed in the preceding section. See Penitentiary Code, supra note 67, tit. 2, § 3(1). To illustrate, "[B]y accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent." Id. The prepositional phrases following "means" apply generally and modify also the correcting of the child or servant. See 4 Blackstone, supra note 8, at *182.
224. 223 Penitentiary Code, supra note 67, tit. 2, § 3(2). The 1857 Code removed the section numbers and added the word "the" before "heat of passion." Rev. Code Miss. ch. 64, § 34, art. 169 (1857).
225. 224 Rev. Code Miss. ch. 77, § 2879 (1880) (emphasis added); Rev. Code Miss. ch. 58, art. 21, § 2632 (1871).
226. 225 Miss. Code Ann. ch. 29, § 1153 (1892) (codified as amended at Miss. Code Ann. § 97-3-17 (2000)).
227. 226 64 Miss. 761, 775 (1887).
228. 227 Wood, 64 Miss. at 764.
229. 228 Id.
230. 229 Id. at 764-65.
231. 230 Id. at 775. But see Miller v. State, 677 So. 2d 726, 730 (Miss. 1996) (questioning and distinguishing Wood decision).
232. 231 See infra notes 233-39 and accompanying text.
233. 232 At common law the accidental killing with a weapon was, of course, available as a defense when the person discharging the weapon was engaged in lawful conduct at the time. 4 Blackstone, supra note 8, at *182. This was certainly covered by the general excusable homicide defense of accident and misfortune that applied to a "lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent." Miss. Code Ann. § 97-3-17(a) (2000).
234. 233 Miller, 677 So. 2d at 732; accord Taylor v. State, 597 So. 2d 192 (Miss. 1992) (reversing murder conviction where defendant claimed gun discharged accidentally after struggle for possession but was denied accident instruction); Scott v. State, 446 So. 2d 580, 583 (Miss. 1984) (holding failure to give accident instruction was reversible error where gun discharged during scuffle and instruction on excuse limited to sudden combat). Oddly, the court in Miller held that the omission of the self defense and accident instruction, which may have been more relevant to the claimed need to fight for possession of the gun, was not reversible error because the instruction (not quoted) was confusing. Miller, 677 So. 2d at 732.
235. 234 Miller, 677 So. 2d at 730.
236. 235 The court affirmed a manslaughter conviction in a case where the defendant claimed he accidentally shot and killed his wife while attempting to commit suicide. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 755 (Miss. 1996). The court reasoned that the defense of accident was not available where the defendant killed during the commission of an unlawful act (as suicide was a crime at common law). Id. at 753; see also Thibodeaux v. State, 652 So. 2d 153, 173-74 (Miss. 1995) (holding accident instruction properly refused where defendant claimed his gun accidentally discharged while he was in the process of headlighting deer). Thibodeaux did not claim heat of passion as a defense and the court reasoned, "The statute defining excusable homicide does not extend to homicide committed in the course of an unlawful act [headlighting deer] nor to homicide committed with a deadly weapon." Thibodeaux, 652 So. 2d at 167 (alteration in original).
237. 236 Model Jury Instructions, supra note 92, § 8:15 (providing broad instruction for accidental shooting without intent). This instruction is based on Scott v. State, 446 So. 2d 580 (Miss. 1984).
238. 237 Model Jury Instructions, supra note 92, § 8:17 (providing instruction for accidental shooting during struggle). This model instruction is far more confusing than the requested instruction that the court criticized in Miller, 677 So. 2d at 732.
239. 238 See supra text accompanying notes 180-87.
240. 239 Alan C. Michaels remarks that "[m]ost states punish certain unintended killings as murder." Alan C. Michaels, Note, Defining Unintended Murder, 85 Colum. L. Rev. 786, 810 (1985). As of 1980 revised murder statutes or proposed revisions in sixteen jurisdictions omitted explicit treatment of some form of unintentional murder. See Model Penal Code § 210.2 cmt. 4, at 26 (1980). Through subsequent judicial construction or legislative amendment, some of those states imposed murder liability on unintended killings. See Louis B. Butterfield, Maine's Unintentional Murder Statute: Depraved Indifference on Trial, 40 Me. L. Rev. 411, 430-34 (1988) (discussing judicial construction of Maine depraved indifference murder statute as not having a subjective culpable state of mind element). For an example of a state statute limiting murder to intentional killings, see Ohio Rev. Code Ann. § 2903.02 (Anderson 1996) (defining murder as "purposely caus[ing] the death of another"). Oregon classifies extreme recklessness killings in general as manslaughter in the first degree, Or. Rev. Stat. § 163.118(1)(a) (2001) (defining manslaughter in the first degree as killing "recklessly under circumstances manifesting extreme indifference to the value of human life"), but elevates this crime to murder when the victim is under fourteen or a dependent person. Id. § 163.115(1)(c).
For citations to statutes and collections of cases, see 2 Charles E. Torcia, Wharton's Criminal Law § 145, at 386-90 (15th ed. 1994 & Supp. 1999); Jeffrey F. Ghent, Annotation, Validity and Construction of "Extreme Indifference" Murder Statute, 7 A.L.R. 5th 758 (1992); Dale R. Agthe, Annotation, Validity and Construction of Statute Defining Homicide by Conduct Manifesting "Depraved Indifference," 25 A.L.R. 4th 311 (1983); John D. Perovich, Annotation, What Constitutes "Imminently Dangerous" Act Within Homicide Statute, 67 A.L.R. 3d 900 (1975); see also Eugene R. Milhizer, Murder Without Intent: Depraved Heart Murder Under Military Law, 133 Mil. L. Rev. 205 (1991) (examining the origins of depraved indifference murder under military law). For a probing, sustained theoretical defense of punishing crimes of indifference, see Samuel H. Pillsbury, Crimes of Indifference, 49 Rutgers L. Rev. 105 (1996).
241. 240 E.g., 18 U.S.C. § 1111 (2000) ("[M]urder is the unlawful killing of a human being with malice aforethought"); see United States v. Shaw, 701 F.2d 367, 392 n.20 (5th Cir. 1983) ("Malice does not require a subjective intent to kill, but may be established by evidence of conduct which is a `reckless and wanton and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.'") (quoting United States v. Black Elk, 579 F.2d 49, 51 (8th
Cir. 1978)); see also United States v. Milton, 27 F.3d 203, 206-08 (6th Cir. 1994) (shooting into car established requisite malice); United States v. Hinkle, 487 F.2d 1205, 1207 (D.C. Cir. 1973) (proposing instruction defining malice as "a state of mind showing a heart that is without regard for the life and safety of others").
242. 241 E.g., Cal. Penal Code § 187 (West 1999) (defining murder as "killing . . . with malice"); id. § 188 ("[Malice] is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.").
243. 242 Lloyd L. Weinreb, Homicide: Legal Aspects, in 2 Encyclopedia of Crime & Justice 855, 859 (Sanford H. Kadish ed., 1983); see also Dressler, supra note 10, § 31.05, at 512-14; LaFave, supra note 10, § 7.4, at 666-70.
244. 243 See generally Dressler, supra note 10, § 31.05[B], at 514 ("There is no common law bright line between `negligence' and `recklessness,' and there is no universally accepted common law definition of `recklessness.' Consequently, the line between unjustified risk-taking that constitutes involuntary manslaughter and that which constitutes murder has never been drawn with clarity.") (footnotes omitted); Michaels, supra note 239, at 786 ("Despite widespread agreement that certain unintended killings should be treated as murder, states continue to struggle in search of a satisfactory means of distinguishing such killings from manslaughter."). See generally Bernard E. Gegan, More Cases of Depraved Mind Murder: The Problem of Mens Rea, 64 St. John's L. Rev. 429 (1990) (discussing New York cases); Leo M. Romero, Unintentional Homicides Caused by Risk-Creating Conduct: Problems in Distinguishing Between Depraved Mind Murder, Second Degree Murder, Involuntary Manslaughter, and Noncriminal Homicide in New Mexico, 20 N.M. L. Rev. 55 (1990) (discussing New Mexico cases).
245. 244 LaFave, supra note 10, § 7.4, at 666.
246. 245 Dressler, supra note 10, § 31.05[A], at 513.
247. 246 Id. § 31.05[B], at 514; LaFave, supra note 10, § 7.4, at 669-70.
248. 247 See Model Penal Code Foreword (1980). For cases construing state statutes influenced by the code, see Ghent, supra note 239. In revising their criminal laws, some states adopted the Model Penal Code's formulation of extreme recklessness while others retained older common law language. See Model Penal Code § 210.2 cmt. 4.
249. 248 See Ala. Code §§ 13A-6-2 to -4 (1994) (addressing murder, manslaughter, and criminally negligent homicide); Ark. Code Ann. §§ 5-10-102(a)(2), -103, -104(a)(3), -105(b)(1) (Michie 1997) (providing relevant statutes regarding first degree murder, second degree murder, manslaughter, and negligent homicide); Tenn. Code Ann. §§ 39-11-302, -13-210(1), -13-212, -13-215 (1997) (listing definitions and relevant statutes for second degree murder, criminally negligent homicide, and reckless homicide).
250. 249 Compare Miss. Code Ann. § 99-19-101 (2000), with Model Penal Code § 210.6. For a discussion of the relevant section of the Mississippi Code, see supra text accompanying notes 140-46.
251. 250 Compare Miss. Code Ann. § 97-3-7(1), (2), with Model Penal Code § 211.1.
252. 251 Model Penal Code § 210.2(1)(a).
253. 252 Id. § 210.2(1)(b).
254. 253 Id. § 210.2 cmt. 1, at 15. The drafters deployed authority tendentiously to avoid confronting the fact that murder liability for unintended killings was becoming controversial. They cited and quoted Commonwealth laws generously but only mentioned in passing the prevailing European preference for intent. Id. cmt. 4, at 23-24. They also ignored English authority except for a Royal Commission report in conflict with the law as written. Id. cmt. 4, at 25 n.51.
The drafters overlooked older authority requiring purpose or intent for murder, e.g., Criminal Code of Ohio with Forms and Precedents for Indictments § 6810 (Moses F. Wilson ed., 1883) (defining murder as "purposely and maliciously" killing), and were surprised by recent legislation that failed to extend murder to unintended killings. Model Penal Code § 210.2 cmt. 4, at 26.
255. 254 Model Penal Code § 2.02(2)(c) (1985); cf. id. 2.02(2)(c) cmt. 3, at 236 ("As the Code uses the term, recklessness involves conscious risk creation. It resembles acting knowingly in that a state of awareness is involved, but the awareness is of risk, that is of a probability less than substantial certainty").
256. 255 Id. § 210.2 cmt. 4, at 27-28 (1980).
257. 256 Id. § 2.02(2)(c) (1985). The drafters had some difficulty in finding words to describe how substantial and unjustifiable the risk needed to be. Seeid. cmt. 3, at 237 n.15.
258. 257 Id. § 210.2(1)(b) (1980) (listing felonies as "robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape").
259. 258 Id. § 210.3(1)(a).
260. 259 Id. § 210.3 cmt. 3, at 49. Manslaughter under the Model Penal Code "refines the traditional definition of manslaughter by demanding proof of conscious disregard of perceived homicidal risk." Id. § 210.3 cmt. 4, at 53.
261. 260 Id. § 210.4 cmt. 1, at 81.
262. 261 Id. § 210.4(2).
263. 262 Id. § 2.02(2)(d) (1985).
264. 263 This is not identified as a purpose of criminal legislation by the code, cf. id. § 1.02, but may be implied by the references to differences between serious and minor offenses, id. § 1.02(1)(e), and to the differentiation among offenders "with a view to a just individualization in their treatment." Id. § 1.02(2)(e).
265. 264 Miss. Code Ann. § 97-3-19(1)(b) (2000).
266. 265 Id. Absence of intent or premeditation was meant merely to distinguish the requirements for depraved heart murder, corresponding to the category of implied malice, from those under the preceding subsection, which originally required "premeditated design." See supra note 109. It was not meant originally to impose an element. Nevertheless, early authority construed the statute not to apply to deliberate design killings. See infra note 281.
267. 266 See Model Jury Instructions, supra note 92, § 8:4. The subsequent "model" instruction that creates a crime of murder for killing a victim while the deceased rather than the accused "was committing an act extremely dangerous to others and evidencing a depraved heart, regardless of human life; and [w]ithout any premeditated design" is a misreading of section 97-3-19(b). Id. § 8:5. There is no authority for the crime defined by the instruction, and giving the instruction would be reversible error.
268. 267 Dobbs v. State, 29 So. 2d 84, 85 (Miss. 1947), overruled on other grounds by Flowers v. State, 473 So. 2d 164, 166 (Miss. 1985).
269. 268 These were the fixed meanings of "eminently" by the eighteenth century. See 1 Oxford English Dictionary 853 (compact ed. 1971). This source also gives as the fifth meaning for "eminently": "Of peril, danger: Imminently, urgently," citing two seventeenth century sources that are ambiguous and may have either meant eminently in its other meanings or may have misspelled it. Id. It also notes under the sixth meaning for "eminent" that "eminent" is confused with "imminent" and, by implication, wrongly deployed to qualify "danger" in two sources. Id. See generally Miss. Code Ann. § 1-3-65 (1998) ("All words and phrases contained in the statutes are used according to their common and ordinary acceptation and meaning; but technical words and phrases according to their technical meaning.").
270. 269 1 Oxford English Dictionary 1380. This source also notes "imminent" is employed in error for "eminent" and "immanent." Id.
271. 270 4 Blackstone, supra note 8, at *192. "[C]oolly discharging a gun among a multitude of people" was, despite almost all current discussions, an example of express malice for Blackstone. Id. at *200. Blackstone's authority for the latter is problematic. He cited Coke, supra note 8, at *57 (maintaining without authority that it was murder for a person to throw a stone over a wall intending to scare people coming from a sermon, "for he had an ill intent, though that intent extended not to death").
272. 271 Black's Law Dictionary 752 (7th ed. 1999) (defining "imminently dangerous" as "reasonably certain to place life and limb in peril"). This source has no entry for "eminently dangerous." See also infra notes 493, 496 for a discussion of the Florida and Oklahoma statutes.
273. 272 Windham v. State, 602 So. 2d 798, 804 n.1 (Miss. 1992) (Hawkins, P.J., concurring). Justice Robertson agreed with this interpretation only "in part" because he believed "the phrase [also] imports a danger that is clear and present." Windham, 602 So. 2d at 808 (Robertson, J., concurring).
274. 273 Mallett v. State, 606 So. 2d 1092, 1095 (Miss. 1992) (holding that homicide may be prosecuted simultaneously as both deliberate design and depraved heart murder). This recent development was controversial. See infra text accompanying notes 282-90.
275. 274 Catchings v. State, 684 So. 2d 591, 599 (Miss. 1996) (quoting Mallett, 606 So. 2d at 1095 (holding there was no error in instructing on depraved heart where defendant was indicted for deliberate design homicide)); see also Hurns v. State, 616 So. 2d 313, 321 (Miss. 1993) (noting that depraved heart statute subsumes the deliberate design statute).
276. 275 Outlaw v. State, 1999-KA-00461-SCT, ¶¶ 6-9, 797 So. 2d 918, 920 (Miss.
277. 276 Ruttley v. State, 97-KA-00783-COA, ¶¶ 18-17, 27, 746 So. 2d 872, 878-79, 881 (Miss. Ct. App. 1998). Justice Robertson proclaimed, "Subsection (1)(b) `eminently dangerous' murder engulfs and subsumes Subsection (1)(a) `deliberate design' murder." Windham, 602 So. 2d at 808 (Robertson, J., concurring). He speculated that there were no reported convictions of deliberate design murder that would fail to satisfy the elements of depraved heart murder. Id. (Robertson, J., concurring).
278. 277 Burnett v. State, 46 So. 248, 249 (Miss. 1908). The facts in Burnett involved a fire fight between two groups. Burnett, 46 So. at 249. The defendant was accused of shooting through a window and killing the victim. Id. He requested an instruction that "malice aforethought is a necessary element in a charge for murder," and the court held that its omission was reversible error. Id.
The short opinion is enigmatic. The defendant may have been indicted for deliberate design murder, and the court may have reasoned that a malice instruction was required in such a case, especially where facts might have supported mitigation to manslaughter.
279. 278 Miss. Code Ann. § 99-7-37 (2000) ("[I]t shall be sufficient to charge in an indictment for murder, that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased."). The omission of this language is not fatal, and an indictment for depraved heart murder in the language of the statute is proper. Johnson v. State, 475 So. 2d 1136, 1138-39 (Miss. 1985).
280. 279 "It has long been the case law of this state that malice aforethought, premeditated design, and deliberate design all mean the same thing." Tran v. State, 681 So. 2d 514, 517 (Miss. 1996); Johnson, 475 So. 2d at 1139; see also Windham, 602 So. 2d at 802-03 (citing cases); Blanks v. State, 542 So. 2d 222, 227 (Miss. 1989) (citing cases).
281. 280 Smith v. State, 114 So. 2d 676, 677 (Miss. 1959) (affirming conviction where trial court did not give instruction defining malice); see also Dobbins v. State, 1998-KA-01322-COA, ¶ 10, 766 So. 2d 29, 32 (Miss. Ct. App. 2000) (holding no definition of malice required in instructions).
282. 281 A jury instruction in the language of the statute is not erroneous and need not require a finding that the killing be done "with malice aforethought," "feloniously," or "willfully." Johnson, 475 So. 2d at 1140.
283. 282 There was considerable older authority that extreme recklessness murder required the creation of risk of death to persons other than the victim. Older cases held that a defendant indicted for deliberate design killing could not be convicted of depraved heart killing even where the proof was overwhelming. E.g., Gentry v. State, 45 So. 721, 722 (Miss. 1908) (holding that shooting into wagon was case of depraved heart murder but reversing conviction where killer was indicted for deliberate design killing), overruled by Catchings v. State, 684 So. 2d 591 (Miss. 1996). See generally Windham, 602 So. 2d at 802-03 (discussing history of doctrine). However, this doctrine was eventually abandoned. See Fairman v. State, 513 So. 2d 910, 913-14 (Miss. 1987); Johnson, 475 So. 2d at 1139. In Windham, two justices suggested returning to the old doctrine. Windham, 602 So. 2d at 804 (Hawkins, P.J., concurring); id. at 808-09 (Banks, J., dissenting) (protesting that expansive view of depraved heart murder threatened to absorb all voluntary manslaughter).
284. 283 Windham, 602 So. 2d at 802.
285. 284 "How, some may ask, was Clayton's treatment, or neglect, of her baby Anginetta `eminently dangerous to others?'" Clayton v. State, 652 So. 2d 720, 727 (Miss. 1995) (Hawkins, C.J., concurring in part and dissenting in part).
286. 285 Windham, 602 So. 2d at 808 (Banks, J., dissenting).
287. 286 Id.
288. 287 E.g., Carter v. State, 21 So. 2d 404 (Miss. 1945) (stating presence of deliberation and malice is the primary factor making killing murder rather than manslaughter).
289. 288 Windham, 602 So. 2d at 808 (Robertson, J., concurring).
290. 289 Id. at 805 (Hawkins, P.J., concurring); id. at 808-09 (Banks, J., dissenting).
291. 290 See Russell v. State, 1999-KA-00566-SCT, ¶¶ 6-12, 789 So. 2d 799, 781-82 (Miss. 2001), discussed supra notes 131-33.
292. 291 Justice Banks repeated his concern in Outlaw v. State, commenting: "It is true . . . that the application of `depraved heart' murder to circumstances such as these conflicts with `heat of passion' manslaughter. Unfortunately for [the defendant], this Court approved that conflict in Windham . . . ." Outlaw, 1999-KA-00461-SCT, ¶ 15, 797 So. 2d 918, 921 (Miss. 2001) (citations omitted).
293. 292 Shaffer v. State, 93-KA-01197-SCT, ¶¶ 31-33, 740 So. 2d 273, 282 (Miss. 1998) (holding phrase "evincing depraved heart, regardless of human life" identified material element of offense and its omission in jury instruction was reversible error even in absence of objection at trial).
294. 293 Presiding Justice Hawkins, in arguing against classifying an unintentional killing of an individual as "depraved," remarked, "The dictionary the State furnished me read that `depraved' means `debasement, corruption, perversion.'" Windham, 602 So. 2d at 805 (Hawkins, P.J., concurring).
In dictum, the court once espoused the "general principle" that where a defendant shoots into a crowd "with a spirit of malignity and utter recklessness of human life" the resulting death is murder "because of the recklessness and willfulness and malignity of the shooting generally." Gentry v. State, 45 So. 721, 721 (Miss. 1908). But the court apparently thought it was voicing an uncontroversial doctrine of black letter law rather than defining the meaning of the terms of the statute.
295. 294 Windham, 602 So. 2d at 808 (Robertson, J., concurring).
296. 295 See supra note 73 and accompanying text.
297. 296 See, e.g., United States v. Fleming, 739 F.2d 945, 948 (4th Cir. 1984); Pears v. State, 672 P.2d 903, 906 (Alaska Ct. App. 1983); People v. Watson, 637 P.2d 279, 282 (Cal. 1981); People v. Gomez, 478 N.E.2d 759, 762 (N.Y. 1985). See generally H.C. Lind, Annotation, Homicide by Automobile as Murder, 21 A.L.R. 3d 116 (1968) (collecting cases).
298. 297 See supra notes 273-76 and accompanying text.
299. 298 See supra notes 33, 273-76; see also Outlaw v. State, 1999-KA-00461-SCT, ¶¶ 6-9, 797 So. 2d 918, 920 (Miss. 2001); Carter v. State, 97-KA-00760-SCT, ¶¶
19-21, 722 So. 2d 1258, 1265 (Miss. 1998); Hudson v. State, 1998-KA-01487-COA, ¶¶ 12-14, 754 So. 2d 582, 585 (Miss. Ct. App. 2000); Williams v. State, 98-KA-00536-COA, ¶¶ 9-10, 749 So. 2d 159, 161 (Miss. Ct. App. 1999).
300. 299 Bruce v. State, 97-KA-00082-COA, ¶¶ 17-21, 746 So. 2d 901, 905-06 (Miss. 1998) (holding that defendant's act of shooting at car allegedly with intent to frighten one passenger was sufficient to support deliberate design murder conviction where other passenger was killed).
301. 300 See Tran v. State, 681 So. 2d 514, 517-18 (Miss. 1996) (holding instruction that "deliberate design may be presumed" from use of deadly weapon was reversible error where facts of shooting were in evidence).
302. 301 See Phillips v. State, 1999-KA-01276-SCT, ¶¶ 19-20, 794 So. 2d 1034, 1038-39 (Miss. 2001) (holding that trial court properly omitted requested instructions on heat-of-passion and imperfect-self-defense manslaughter where defendant killed unarmed victim with shotgun in course of argument). But seeTran, 681 So. 2d at 520 (reversing and remanding for new trial without presumption-of-deliberate-design instruction where defendant fired shotgun in direction of victim but may have had defense or circumstances may have supported mitigation to manslaughter).
303. 302 E.g., Outlaw, 1999-KA-00461-SCT, ¶¶ 10-15, 797 So. 2d at 920-21 (finding evidence of stabbing sufficient to support murder verdict where jury instructed on both deliberate design and depraved heart theories); Roberson v. State, 257 So. 2d
505, 507 (Miss. 1972) (holding judge properly submitted murder charge to jury where defendant shot at occupied building, killing victim, possibly without intent to kill); Ruttley v. State, 97-KA-00783-COA, ¶¶ 18-19, 746 So. 2d 872, 878-79 (Miss. Ct. App. 1998) (holding evidence of unprovoked shooting sufficient to support depraved heart murder conviction).
304. 303 See supra note 31.
305. 304 In Talbert v. State, the court affirmed the murder conviction and capital sentence of a defendant who shot his pistol once into a passing truck carrying twenty-one African American men, wounding one and killing one. 159 So. 549, 550-51 (Miss. 1935). The court rejected his claims that the killing should be held accidental. Talbert, 159 So. at 550-51. It further rejected defendant's suggestion he could be guilty of no crime greater than manslaughter because of an alleged insult to his wife, because this was contradicted by the state's witnesses, creating a fact issue. Id. The court also cited cases holding that the use of a deadly weapon raised a presumption of malice. Id.
In Bass v. State, the defendant left a beer garden after arguing with a man, returned with a pistol, and shot it once into a crowd, killing the victim and wounding the man with whom he had been arguing. 54 So. 2d 259, 260 (Miss. 1951). Tried for murder and manslaughter but convicted of manslaughter, the defendant appealed the murder instruction. Bass, 54 So. at 260. The court held that the instruction was proper (not just harmless) and concluded that the evidence was sufficient to sustain a murder conviction on a theory of depraved heart. Id. at 260-61 (referring to Talbert).
In Wheeler v. State, a defendant caused a pistol to fire several times while fighting with police over it. 536 So. 2d 1341, 1342 (Miss. 1988). In affirming the murder conviction, the court stated, "[b]y seizing the officer's gun and firing it (according to the most generous possible interpretation) recklessly and at random, Wheeler certainly engaged in the type of conduct contemplated by § 97-3-19(1)(b)." Wheeler, 536 So. 2d at 1344. A narrow majority reversed a capital murder conviction on the ground that there was insufficient evidence that defendant knew the victim was a peace officer. Id. at 1343-44; see also Gentry v. State, 45 So. 721, 721 (Miss. 1908) (suggesting, in dictum, that evidence of shooting into wagon was sufficient to support depraved heart murder conviction but reversing where statute was not included in indictment).
306. 305 61 So. 423, 423 (Miss. 1913).
307. 306 Dixon, 61 So. 2d at 423.
308. 307 Id.
309. 308 Jones v. State, 152 So. 879, 880 (Miss. 1934).
310. 309 Jones, 152 So. at 880.
311. 310 Id.
312. 311 See generally LaFave, supra note 10, § 7.1(a), at 668 (discussing cases).
313. 312 Commonwealth v. Malone, 47 A.2d 445, 447 (Pa. 1996).
314. 313 Malone, 47 A.2d at 447. Malone testified that he had no intention of killing the victim, with whom he was living at the time. Id. He claimed that he armed the chamber to the right of the firing position and did not expect it to fire. Id. The facts stated in the opinion may less readily support a finding of extreme recklessness than those imputed to the case by Joshua Dressler, who claims the defendant spun the firing chamber before firing. Dressler, supra note 10, at 31.05[A], at 513 n.98; see also People v. Roe, 542 N.E.2d 610, 612-14 (N.Y. 1989) (affirming depraved indifference murder conviction for "police roulette" killing where defendant pulled trigger, shooting victim); cf. Commonwealth v. Atencio, 189 N.E.2d 223, 224-25 (Mass. 1963) (affirming manslaughter conviction for "Russian roulette" killing where victim pulled the trigger).
315. 314 The Model Penal Code identified Malone as one example where the Code "would permit a jury to reach the same conclusion." Model Penal Code § 210.2 cmt. 4, at 23 (1985). The drafters may not have appreciated that, if the defendant's testimony was credible, he not only lacked intent to kill but also lacked the awareness of risk required for recklessness.
316. 315 669 So. 2d at 85, 87 (Miss. 1996) (en banc).
317. 316 Tait, 669 So. 2d at 87.
318. 317 Id. at 91. Chief Justice Dan M. Lee concurred in the result only, id., while Justice McRae dissented from entry of the manslaughter conviction, arguing that the entry of judgment exceeded the court's limited appellate jurisdiction as conferred under the state constitution. Id. at 91-92 (McRae, J., dissenting).
319. 318 Tait, 669 So. 2d at 90.
320. 319 Id.
321. 320 Id. at 87.
322. 321 547 So. 2d 29, 32 (Miss. 1989).
323. 322 Blanks, 547 So. 2d at 31-32.
324. 323 Id. at 33-34. The court in Blanks reversed the conviction because of the admission of prejudicial evidence. Id. at 37.
325. 324 Id. at 34. The court in Tait distinguished Blanks by evidence of defendant's remorse. Tait, 669 So. 2d at 90. But guilt and remorse led the defendant to admit the accidental shooting eleven days later in Blanks, 547 So. 2d at 32. The psychological relevance of remorse is open to question. See generally Martha Grace Duncan, "So Young and So Tender": Remorseless Children and the Expectations of the Law (2001) (unpublished manuscript, on file with the Mississippi Law Journal).
326. 325 Blanks, 547 So. 2d at 34.
327. 326 Id. at 32.
328. 327 The court reversed because of the admission of evidence that the defendant
had waved a gun around another person on another occasion. Id. at 37 (citing Miss. R. Evid. 404(b)). Because the defendant claimed the shooting was an accident, the court did not persuasively explain why the otherwise inadmissible evidence did not fall under the exception for "absence of mistake or accident." See Miss. R. Evid. 404(b).
329. 328 Tait, 669 So. 2d at 87.
330. 329 693 So. 2d 927, 933 (Miss. 1997). Justice Banks concurred in the result without opinion. Clark, 693 So. 2d at 933. The court's lack of attention to precedent may be the responsibility of counsel who failed to bring relevant authority to its attention.
331. 330 Id. at 929.
332. 331 Id.
333. 332 Id. The opinion is inscrutable, but the case was apparently prosecuted and tried on both deliberate design and depraved heart theories because the trial court decided motions based on deliberate design and the supreme court based its decision on depraved heart. Id. at 931.
334. 333 Id. at 929.
335. 334 Id. at 933.
336. 335 Id. at 930 (quoting Windham v. State, 602 So. 2d 801, 802 (Miss. 1992)).
337. 336 Id. at 931.
338. 337 Id. at 932-33.
339. 338 Id.
340. 339 Blanks, 547 So. 2d at 33-34.
341. 340 Id. at 34.
342. 341 The trial court properly gave voluntary manslaughter instructions in Clark, 693 So. 2d at 931.
343. 342 1999-KA-00764-COA, ¶ 3, 776 So. 2d 714, 715 (Miss. Ct. App. 2000).
344. 343 Dowda, 1999-KA-00764-COA, ¶ 9, 776 So. 2d at 716.
345. 344 Id. ¶¶ 7, 9, 776 So. 2d at 715-16.
346. 345 Id. ¶ 9, 776 So. 2d at 716.
347. 346 Id. ¶¶ 13-20, 776 So. 2d at 716-17 (Irving, J., dissenting) (finding sufficient evidence for manslaughter). Justice King joined Justice Irving's opinion. Id. ¶ 12, 776 So. 2d at 716.
348. 347 Miller v. State, 97-KA-00072-COA, ¶¶ 14-16, 733 So. 2d 846, 850 (Miss. Ct. App. 1998) (suggesting in dictum that unintended death resulting from blow to neck is insufficient evidence of culpable negligence manslaughter).
349. 348 Fairman v. State, 513 So. 2d 910, 912, 914 (Miss. 1987). In one of the few opinions to address intervening causation, the supreme court further held that alleged maltreatment by physician did not relieve the defendant of liability. Fairman, 513 So. 2d at 913 ("[T]he unlawful acts or omissions of an accused need not be the sole cause of death. The test for responsibility is whether the act of the accused contributed to the death, and, if it did, he is not relieved of responsibility by the fact that other causes also contributed.") (citing Holliday v. State, 418 So. 2d 69, 71 (Miss. 1982)).
350. 349 Johnson v. State, 475 So. 2d 1136, 1149 (Miss. 1985).
351. 350 Neighbors v. State, 361 So. 2d 345, 347 (Miss. 1978); see also Smith v. State, No. 96-CA-01271-COA, 1998 Miss. App. LEXIS 933, at *1-*2 (Miss. Ct. App. Oct. 27, 1998) (affirming depraved heart murder conviction entered pursuant to plea agreement where defendant struck infant during potty training causing him to fall off toilet and strike his head).
352. 351 Sanders v. State, 1999-KA-01663-SCT, ¶¶ 11-13, 781 So. 2d 114, 118-19 (Miss. 2001); Windham v. State, 602 So. 2d 798, 799 n.1 (Miss. 1992).
353. 352 Windham, 602 So. 2d at 802.
354. 353 Clayton v. State, 652 So. 2d 720 (Miss. 1995).
355. 354 Clayton, 652 So. 2d at 720.
356. 355 Id. at 727 (Hawkins, C.J., concurring in part and dissenting in part) (joining Chief Justice Hawkins were Justices Sullivan and Banks).
357. 356 Id. at 727 (Smith, J., dissenting) (joining this opinion was Justice Roberts). The dissenting opinion argues very convincingly that the plurality minimized inculpatory evidence and draws on authority from other jurisdictions to support murder liability. Id.
358. 357 Id. at 724-25 (plurality opinion).
359. 358 Id. at 725.
360. 359 Id. at 726 ("The trial court properly gave instructions allowing the jury to find [the defendant] guilty of manslaughter rather than murder."). The Chief Justice's remark that he disagreed with the majority that manslaughter instructions cannot be proper, must have referred to an earlier draft of the opinion for the court. See id. at 727 (Hawkins, C.J., concurring in part and dissenting in part).
361. 360 See Miss. Code Ann. § 97-3-47 (2000); supra note 103 (quoting text and discussing the origin of this statute).
362. 361 Search of state opinions on LEXIS (States; Omni files) before 1820 employing "culpable negligence" yielded twenty cases. All employed "culpable negligence" to denote a loss-shifting doctrine in civil cases. A similar search of Mississippi opinions before 1900 yielded eighteen cases. All applied "culpable negligence" to denote a loss-shifting doctrine in torts or contracts. For an early manslaughter prosecution under a "culpable negligence" statute, see Thomas v. Winchester, 6 N.Y. 397, 409 (1852) (finding mislabeling narcotic prescription to be culpable negligence).
363. 362 Sims v. State, 115 So. 217, 219 (Miss. 1928); see Black's Law Dictionary 1057 (7th ed. 1999) (stating that culpable negligence "has been held incapable of exact definition") (quoting 65 C.J.S. Negligence § 1(13) (1966)).
364. 363 Mayfield v. State, 612 So. 2d 1120, 1128 (Miss. 1992).
365. 364 Cf. 4 Blackstone, supra note 8, at *191 ("So where a person does an act, lawful in itself, but in an unlawful manner, and without due caution and circumspection: as when a workman flings down a stone or piece of timber into the street, and kills a man; this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done . . . .").
366. 365 The evidence is inconclusive, but a contemporaneous Missouri codification,
like Mississippi's modeled on the New York Penal Code, added the phrase "which would be manslaughter at common law." Rice v. State, 8 Mo. 561, 563 (1844). Though the Missouri court construed this language as providing an additional element, it might have been merely declarative of the purpose of the manslaughter statute.
The most significant modification of the common law concerned the defense of excuse allowed in barehanded killings in fights. These were treated as manslaughter at common law. See supra notes 14, 79-81 and accompanying text.
367. 366 Bailey v. State, 169 So. 765, 767 (Miss. 1936) (stating manslaughter conviction cannot be based on mere negligence); Shows v. State, 168 So. 862, 864 (Miss. 1936) (holding definition of culpable negligence requires more than simple negligence); see also Frambes v. State, 97-KA-00921-COA, ¶¶ 15-19, 751 So. 2d 489, 492 (Miss. Ct. App. 1999) (reversing aggravated DUI conviction where instruction shifted burden to defendant of proving contributory negligence beyond reasonable doubt).
368. 367 Grinnell v. State, 230 So. 2d 555, 558 (Miss. 1970) (opining that defining culpable negligence in terms of gross negligence presented improper guide to jury); Reynolds v. State, 24 So. 2d 781, 784 (Miss. 1946) (reversing manslaughter conviction and remanding to lower court because defining culpable negligence as gross negligence is prejudicial error); McKinney v. State, 18 So. 2d 446, 447 (Miss. 1944) (stating that instructing jury on gross negligence in manslaughter case could mislead jury as to what constitutes culpable negligence); cf. Nicholson ex rel. Gollott v. State, 646 So. 2d 1297, 1301 (Miss. 1994) ("A manslaughter conviction will only lie where a jury finds beyond a reasonable doubt that the accused is guilty of culpable negligence (must be tantamount to a wanton disregard of, or utter indifference to, the safety of human life . . . ), which is beyond gross negligence in a civil context.").
369. 368 Smith v. State, 20 So. 2d 701, 705 (Miss. 1945) (reversing manslaughter conviction and remanding for new trial), quoted in Evans v. State, 562 So. 2d 91, 94 (Miss. 1990) (holding that state failed to prove manslaughter by culpable negligence); see Harried v. State, 98-KA-00586-COA, ¶¶ 6-9, 773 So. 2d 966, 968-69 (Miss. Ct. App. 2000). The court originally emphasized that the definition of culpable negligence should vary from case to case. See generally Fred B. Smith, The Work of the Mississippi Supreme Court 1942-1946: Criminal Law, 18 Miss. L.J. 16, 17 (1946)
370. 369 Clayton v. State, 652 So. 2d 720, 726 (Miss. 1995) (discussing appropriate language for culpable negligence manslaughter instruction); Gant v. State, 244 So. 2d 18, 19 (Miss. 1971) (affirming manslaughter conviction due to lack of culpable negligence), quoted in Evans, 562 So. 2d at 94; see Dickerson v. State, 441 So. 2d 536, 540 (Miss. 1983) (reversing manslaughter conviction and remanding for new trial); see also Hopson v. State, 615 So. 2d 576, 577 (Miss. 1993) (affirming culpable negligent manslaughter conviction of drunken driver); Whitehurst v. State, 540 So. 2d 1319, 1327-28 (Miss. 1989) (stating that under facts of case, defendant could not be convicted of culpable negligence manslaughter and could not have committed negligent manslaughter); Gibson v. State, 503 So. 2d 230, 234 (Miss. 1987) (stating that driver's intoxication alone is not enough for manslaughter conviction); Hynum v. State, 77 So. 2d 313, 314 (Miss. 1955) (affirming culpable negligence manslaughter conviction where jury properly found defendant guilty based on evidence of case); Smith, 20 So. 2d at 709 (reversing culpable negligence manslaughter conviction because finding of gross negligence on part of defendant did not meet higher statutory burden of culpable negligence); Beckham v. State, 97-KA-00724-COA, ¶ 7, 735 So. 2d 1059, 1061 (Miss. Ct. App. 1999) (holding that to convict for vehicular manslaughter, culpable negligence of defendant must be found); cf. Model Jury Instructions, supra note 92, § 8.15 ("[Defendant] was negligent and the negligence was so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life . . . .").
371. 370 Edwards v. State, 97-KA-00434-COA, ¶¶ 13-15, 755 So. 2d 443, 447 (Miss. Ct. App. 1999) (holding jury instructions concerning culpable negligence were defective when they did not define which of defendant's acts or omissions could constitute criminal negligence). Where a defendant has requested a defining instruction and then withdraws the request, the omission is not reversible error. Towner v. State, 97-KA-01176-COA, ¶ 9, 726 So. 2d 251, 255 (Miss. Ct. App. 1998) (affirming manslaughter conviction of defendant for shooting death of twelve-year-old victim).
372. 371 Clayton, 652 So. 2d at 726.
373. 372 Gant, 244 So. 2d at 19 (quoting McKinney v. State, 18 So. 2d 446, 447
(Miss. 1944) (Griffith, J., concurring)); see also Ruffin v. State, 32 So. 2d 882, 882 (Miss. 1947) (expressing concern over manslaughter conviction for simple negligence in automobile fatality).
374. 373 See infra note 406 and accompanying text (noting convictions have been sustained even where defendants believed guns were unloaded); infra notes 375-78 and accompanying text (noting convictions have been sustained in automobile cases where intoxication is coupled with reckless driving). There likely would have been insufficient evidence for these convictions under older authority. Cf. Gant, 244 So. 2d at 21 (quoting McKinney, 18 So. 2d at 447 (Griffith, J., concurring)) (reversing manslaughter conviction based on evidence defendant had whiskey bottle in car, was weaving one hour before accident, and veered into victim's lane on curve, causing death).
375. 374 Craig v. State, 520 So. 2d 487, 491 (Miss. 1988) (citing Gandy v. State, 373 So. 2d 1042, 1046 (Miss. 1979)).
376. 375 See Holloman v. State, 656 So. 2d 1134, 1142-43 (Miss. 1995) (affirming culpable negligence manslaughter conviction where defendant was intoxicated, speeding and running red light); Patrick v. State, 249 So. 2d 667, 668-69 (Miss. 1971) (affirming culpable negligence manslaughter conviction where defendant driving seventy to seventy-five miles per hour in wrong lane of traffic); Griffin v. State, 135 So. 2d 198, 199-200 (Miss. 1961) (affirming conviction for culpable negligence manslaughter where father told sixteen-year-old son to speed and not stop while being pursued by police); Moore v. State, 117 So. 2d 469, 471-72 (Miss. 1960) (speeding through residential neighborhood); Hatcher v. State, 92 So. 2d 552, 557 (Miss. 1957) (hitting child riding a bicycle); Dendy v. State, 79 So. 2d 827, 828-29 (Miss. 1955) (passing car at crest of hill); Coleman v. State, 45 So. 2d 240, 242-43 (Miss. 1950) (driving intoxicated down wrong side of highway); Henderson v. State, 25 So. 2d 133, 135 (Miss. 1946) (passing truck without looking and colliding with oncoming vehicle); Wilson v. State, 161 So. 744, 745 (Miss.
1935) (speeding far in excess of posted limit); Williams v. State, 137 So. 106, 107 (Miss. 1931) (driving while intoxicated, hitting telephone pole, and killing passenger); Bradford v. State, 127 So. 277, 278-79 (Miss. 1930) (driving at excessive speed, but remanded on other grounds).
377. 376 Sims v. State, 115 So. 217, 217-18 (Miss. 1928). The court conceded that the evidence of nose powdering was not competent but did not think the case should be reversed for that single error. Sims, 115 So. at 219. The contemporary applicability of older cases can be problematic both because social standards of risktaking have changed and because the standard for culpable negligence was stated differently.
378. 377 Id. at 219.
379. 378 E.g., Campbell v. State, 285 So. 2d 891 (Miss. 1973). This is a logical inference from Campbell, in which the court affirmed a manslaughter conviction where the other driver in a race applied his brakes, swerving into an oncoming vehicle, resulting in death to drivers in other cars on a theory that the surviving driver "aided and abetted" the other driver's acts. Campbell, 285 So. 2d at 893, 895.
380. 379 The court's approach evolved during the course of the last century. In an early vehicle homicide case, it suggested that the habitual violation of speed laws or yield requirements by many motorists did not prevent a motorist from being properly convicted of manslaughter when a violation caused death. Wilson, 161 So. at 745. In later cases the court scrutinized evidence of recklessness demonstrating indifference to human life. See Dickerson v. State, 441 So. 2d 536, 540 (Miss. 1983) (holding no evidence of culpable negligence where defendant was intoxicated but there was no other evidence of unsafe driving where victim's car was stopped in middle of road at night without lights and where defendant saw car and tried to stop); Goudy v. State, 35 So. 2d 308, 309 (Miss. 1948) (passing to right not culpable negligence).
381. 380 Frazier v. State, 289 So. 2d 690, 692 (Miss. 1974) (holding intoxication must proximately cause death of another); Lee v. State, 7 So. 2d 875, 875 (Miss. 1942) (holding intoxication alone not sufficient); Cutshall v. State, 4 So. 2d 289, 292 (Miss. 1941) (holding intoxication alone is not sufficient for manslaughter but must proximately contribute both to state of culpable negligence and to death);
see Childs v. State, 521 So. 2d 882, 883 (Miss. 1988) (holding that evidence of driving under influence of intoxicating liquor in violation of section 63-11-30 of the Mississippi Code and running stop sign insufficient to sustain culpable negligence manslaughter but sufficient for aggravated DUI).
382. 381 259 So. 2d 686, 687 (Miss. 1972).
383. 382 Ducking, 259 So. 2d at 687.
384. 383 Id. at 688. The court was probably sensitive to the facts that the defendant, a seventeen-year-old student, had received only three days training as a school bus driver, and was substituting as a favor to the regular driver. See id. at 687.
385. 384 Holloman v. State, 656 So. 2d 1134, 1142 (Miss. 1995) (affirming manslaughter conviction where there was evidence of intoxication, speeding, and running red light); Atkinson v. State, 392 So. 2d 205, 207 (Miss. 1981) (affirming manslaughter conviction where intoxicated driver attempted to pass another vehicle and delayed for several seconds after danger of oncoming vehicle was visible); Gandy v. State, 373 So. 2d 1042, 1046 (Miss. 1979) (holding intoxicated defendant causing death by driving in the wrong lane established culpable negligence); Beckham v. State, 97-KA-00724-COA, ¶¶ 2-4, 735 So. 2d 1059, 1060-62 (Miss. Ct. App. 1999) (affirming manslaughter conviction based on culpable negligence where intoxicated driver collided with car in front of him with such force both cars flipped over). The courts have emphasized that driving while intoxicated is not automatically culpable negligence but may provide an element of such negligence, tending to show careless disregard for the value of human life. Beckham, 97-KA-00724-COA, ¶¶ 7-10, 735 So. 2d at 1061-62; see Jones v. State, 1998-KA-01102-COA, ¶ 1, 761 So. 2d 907, 908 (Miss. Ct. App. 2000) (concerning "DUI manslaughter"); see also Gibson v. State, 503 So. 2d 230, 233 (Miss. 1987) (finding culpable negligence for intoxication plus evidence defendant left straight and level lane of interstate highway); Chaffin v. State, 227 So. 2d 478, 479 (Miss. 1969) (finding culpable negligence for intoxication plus evidence of speed over 100 miles per hour); Hynum v. State, 77 So. 2d 313, 315 (Miss. 1955) (finding culpable
negligence for intoxication plus evidence of speeding and weaving); Lester v. State, 46 So. 2d 109, 109 (Miss. 1950) (finding culpable negligence for intoxication plus evidence of weaving).
386. 385 562 So. 2d 91, 92 (Miss. 1990).
387. 386 Evans, 562 So. 2d at 93.
388. 387 Id. at 95 (citing Downs v. State, 41 So. 2d 19, 21 (Miss. 1949) (reversing manslaughter conviction for vehicle fatality where prosecutor did not prove causal connection between drinking and accident)); see Frazier v. State, 289 So. 2d 690, 692 (Miss. 1974) ("[Drinking] must create an abnormal mental and physical condition which tends to deprive one of the clearness of intellect and control of himself which he would otherwise possess.") (quoting Cutshall v. State, 4 So. 2d 289, 292 (Miss. 1941)). The court concluded that in the absence of drinking, the defendant would have been free from fault. Evans, 562 So. 2d at 95.
For other opinions finding that negligence and intoxication are not enough to establish culpable negligence, see Craig v. State, 520 So. 2d 487, 492-93 (Miss. 1988) and Gandy, 373 So. 2d at 1046.
389. 388 Evans, 562 So. 2d at 97. The jury had also convicted of aggravated DUI, which in 1990 was a lesser included offense in that the authorized punishment was less serious than that for manslaughter. Id.; see supra notes 180-87 and accompanying text.
For other cases reversing culpable negligence manslaughter convictions where there was evidence of drinking or intoxication, see Smith v. State, 20 So. 2d 701, 706 (Miss. 1945); Cutshall, 4 So. 2d at 293; Scott v. State, 185 So. 195, 196 (Miss. 1938); and Shows v. State, 168 So. 862, 864 (Miss. 1936).
390. 389 See supra notes 180-87 and accompanying text.
391. 390 Jones v. State, 442 So. 2d 919, 919, 921 (Miss. 1983). Evidence included the defendant's admission that he struck the victim five or six times but also included substantial circumstantial evidence that might have supported an inference of a more sustained fight. Jones, 442 So. 2d at 919-20. The victim died from brain injuries over one year later. Id. The defendant was tried for murder, and the jury returned a manslaughter conviction as a lesser included offense, apparently without any specific finding of culpable negligence, and the supreme court affirmed, finding sufficient evidence. Id. at 921.
392. 391 Durr v. State, 95-CT-00488-SCT, ¶¶ 4, 8, 722 So. 2d 134, 134-35 (Miss. 1998) (affirming manslaughter conviction despite omission of jury instruction on accident). Justice McRae, joined by Justice Waller, dissented, asserting that evidence that the assault was relatively mild created a fact question of accident. Durr, 95-CT-00488-SCT, ¶ 14, 722 So. 2d at 136 (McRae, J., dissenting).
393. 392 Miller v. State, 97-KA-00072-COA, ¶ 15, 733 So. 2d 846, 850 (Miss. Ct. App. 1998).
394. 393 Miller, 97-KA-00072-COA, ¶¶ 16, 19, 733 So. 2d at 850-51.
395. 394 Id. ¶¶ 13-14, 733 So. 2d at 849-50. For discussion and questioning of this reasoning, see infra notes 415-19 and accompanying text.
396. 395 See supra notes 297-303 (deadly weapon), 348-52 (aggravated assaults).
397. 396 Windham v. State, 602 So. 2d 798, 801 (Miss. 1992); see supra notes 282-83, 371 and accompanying text.
398. 397 Roberson v. State, 257 So. 2d 505, 507-08 (Miss. 1972) (affirming culpable negligence manslaughter conviction where defendant shot at house, killing victim, regardless of intent). In Roberson, the court suggested that the result was proper both because there was sufficient evidence of culpable negligence and because manslaughter was a lesser included offense of murder, for which there was sufficient evidence. Roberson, 257 So. 2d at 508; cf. Gaddis v. State, 42 So. 2d 724, 726 (Miss. 1949) (affirming murder conviction but opining that manslaughter would be proper if defendant shot the victim accidentally as claimed). The presumption of culpable negligence may be enough to overcome the Weathersby rule. See infra note 402.
This result converges with the treatment of sufficiency of evidence challenges in murder prosecutions where the jury returns a verdict of manslaughter either on a theory of heat of passion or as a lesser included offense. Ford v. State, 96-KA-01228-COA, ¶ 33, 734 So. 2d 343, 351 (Miss. Ct. App. 1999) (holding evidence sufficient to support manslaughter conviction, without specifying theory, where defendant held knife at time of fatal wounding and evidence was inconsistent with self defense).
399. 398 Hancock v. State, 47 So. 2d 833, 840 (Miss. 1950).
400. 399 McCaffrey v. State, 187 So. 740, 744-45 (Miss. 1939). The opinion in McCaffrey is difficult to read. The court's discussion of evidence indicates plainly that there was credible evidence of use of some tool as a weapon, and possibly a stomping on the victim's head. McCaffrey, 187 So. at 741-43. The court observed, however, "[t]he jury could infer . . . the killing [was] the unanticipated result flowing from the fight, in which fists and feet were used, but no weapons." Id. at 744 (emphasis added). It appears, however, that the court meant that while the jury could have so found, its verdict of manslaughter indicated that it did not so find.
401. 400 See generally Harried v. State, 98-KA-00586-COA, ¶¶ 5-9, 773 So. 2d 966, 968-69 (Miss. Ct. App. 2000) (affirming culpable negligence manslaughter conviction in shooting case).
402. 401 121 So. 492, 493 (Miss. 1928).
403. 402 Burge v. State, 472 So. 2d 392, 396 (Miss. 1985). Burge is particularly significant for its conclusion that the Weathersby rule does not preclude manslaughter liability where the defendant claims the display of force was motivated by fear. Burge, 472 So. 2d at 396; cf. Weathersby v. State, 147 So. 481, 482 (Miss. 1933) (holding that defendant's version of events should be accepted when he or she was only witness unless contradicted by other evidence or inferences). This doctrine has spawned much litigation and is sparingly applied. See Turner v. State, 1999-KA-02010-SCT, ¶¶ 10-15, 796 So. 2d 998, 1001-02 (Miss. 2001) (holding expert opinion evidence contradicting defendant's claim of accidental firing was sufficient to prevent application of Weathersby rule).
404. 403 669 So. 2d 85 (Miss. 1996); see supra notes 315-20 and accompanying text.
405. 404 Butler v. State, 375 So. 2d 1039, 1040 (Miss. 1979) (affirming manslaughter conviction where defendant fired handgun into crowded bar and later returned with cocked gun in holster which fired during struggle).
406. 405 See Towner v. State, 97-KA-01176-COA, ¶¶ 15-16, 726 So. 2d 251, 256 (Miss. Ct. App. 1998). The facts were in dispute but did not affect the courts holding that an accident instruction was neither required nor proper where the shooting occurred outside a lawful activity. Towner, 97-KA-01176-COA, ¶¶ 13-16, 726 So. 2d at 254.
407. 406 Strode v. State, 406 So. 2d 820, 823 (Miss. 1981) (affirming culpable negligence manslaughter conviction where defendant shot friend while playing with gun he believed unloaded). The court in Strode distinguished the holding in Latiker v. State, 278 So. 2d 398 (Miss. 1973), emphasizing the absence of horseplay, drunken brawling, or other reckless conduct in that case. Strode, 406 So. 2d at 822.
In Gregory v. State, the court affirmed a culpable negligence manslaughter conviction where a husband believed he emptied a handgun and handed it to his angry and intoxicated wife during an argument. 118 So. 906, 910 (Miss. 1928). She pointed the gun at her chest and pulled the trigger twice, and he encouraged her to try again by stating, "You can't kill yourself with an empty gun." Gregory, 118 So. at 908. She responded by pulling the trigger a third time and the gun fired. Id. The court specifically found that the failure to verify that the chamber was empty was culpable negligence under these circumstances. Id. at 909. The authority of this case is problematic because the defendant did not argue that the case was governed by the predecessor of Miss. Code. Ann. § 97-2-49 (2000) (aiding suicide).
See also Crossley v. State, 420 So. 2d 1376, 1381 (Miss. 1982) (holding a handgun a deadly weapon even when not loaded or capable of being fired).
408. 407 Phillips v. State, 379 So. 2d 318, 320 (Miss. 1980) (holding no culpable negligence where defendant was unloading shotgun, believed it empty, pointed at ceiling and pulled trigger, killing girlfriend, and record showed no horseplay, intoxication, fighting or other reckless conduct); Latiker, 278 So. 2d at 399 (pulling gun from pocket when it fired).
The rule in these cases is good, but its application questionable. Both opinions overlooked evidence and inferences that could support a finding of extreme recklessness. In Phillips, the defendant was unloading his loaded rifle while his girlfriend sat "on the arm of the couch directly in front of the appellant." Phillips, 379 So. 2d at 319. When he was pointing the rifle at the ceiling, she stood up into the line of fire. Id. In Latiker, the defendant pulled the gun from his pocket when it fired. Latiker, 278 So. 2d at 398. Moreover, he fled after the accident (or at least did not surrender himself for two days). Id. Flight alone, like concealing a crime, should provide an inference of specific intent, let alone culpable negligence. See Blanks v. State, 547 So. 2d 29 (Miss. 1989); supra notes 321-27 and accompanying text; see also Williams v. State, 667 So. 2d 15, 23 (Miss. 1996) (holding evidence that defendant removed body from scene of shooting sufficient to support manslaughter verdict over claim of self defense).
409. 408 Jones v. State, 678 So. 2d 707, 710 (Miss. 1996) (holding failure to obtain
medical aid for eleven-month-old child with perforated colon and failure to supervise that led to unexplained cocaine poisoning established culpable negligence); cf. Clayton v. State, 652 So. 2d 720, 726 (Miss. 1995) (remanding for retrial on depraved heart murder and thus implicitly assuming sufficient evidence of culpable negligence manslaughter where mother failed to provide food and medical care for two-year-old child).
410. 409 97-DP-00566-SCT, ¶ 23, 755 So. 2d 443, 449 (Miss. Ct. App. 1999).
411. 410 Edwards, 97-DP-00566-SCT, ¶¶ 20-22, 755 So. 2d at 448-49.
412. 411 Id.
413. 412 Id. ¶¶ 29-31, 755 So. 2d at 450-51 (Lee, J., dissenting).
414. 413 An instruction permitting a finding of culpable negligence from a violation of speed laws is reversible error. Bailey v. State, 169 So. 765, 766-67 (Miss. 1936). In Cutshall v. State, the court recognized that drunk driving was a misdemeanor but nevertheless emphasized that a resulting death was not automatically
manslaughter. 4 So. 2d 289, 291 (Miss. 1941). Several cases held that evidence sufficient for aggravated DUI convictions was not sufficient for culpable negligence manslaughter. Evans v. State, 562 So. 2d 91, 97 (Miss. 1990); Childs v. State, 521 So. 2d 882, 883 (Miss. 1988); Craig v. State, 520 So. 2d 487, 492-93 (Miss. 1988); cf. Jones v. State, 145 So. 2d 446, 449-50 (Miss. 1962) (holding reversible error to instruct so that intoxication alone may be found to establish culpable negligence). See generally supra notes 379-83, 387-88 and accompanying text (discussing cases that hold that killing while violating the criminal prohibition of driving under the influence does not automatically establish culpable negligence).
415. 414 See Jabron v. State, 159 So. 406, 407 (Miss. 1935) (holding evidence insufficient to prove culpable negligence where defendant only gave child three swallows of whisky and was unaware others had previously given child whisky that cumulatively produced fatal alcohol poisoning). Though grounding its holding in language of causation, noting the requirement that death result as the natural and probable consequence of defendant's act, the court emphasized both that the defendant did not know the child had access to other alcohol and that there was no evidence that three swallows of whisky was likely to be dangerous to the life of a six-year-old child. Jabron, 159 So. at 407.
416. 415 97-KA-00072-COA, ¶¶ 15-16, 733 So. 2d 846, 850 (Miss. Ct. App. 1998).
417. 416 Miller, 97-KA-00072-COA, ¶¶ 13-14, 733 So. 2d at 849-50. This interpretation is apparently without precedent in the state's history. When New York interpreted its killing-during-commission-of-misdemeanor statute (the model for Mississippi's) as a misdemeanor manslaughter statute, it imposed manslaughter liability for an assault without intent to kill. See Darry v. People, 10 N.Y. 120 (1854). Mississippi apparently never so broadly applied the statute.
418. 417 97-KA-01176-COA, ¶¶ 14-15, 726 So. 2d 251, 256 (Miss. Ct. App. 1998). The reasoning in Towner would result in strict manslaughter liability for gunshot deaths and eliminate any defense of accident in many common situations where the unexcused, unjustified discharge of a weapon violated a municipal ordinance
or other positive law.
419. 418 Miss. Code Ann. § 97-3-17(c) (2000) (stating excusable homicide applies to killings during sudden combat where the defendant takes no undue advantage and neither employs a dangerous weapon nor a cruel or unusual method). This excuse treated unpremeditated barehanded killings during a fight differently from similar killings with weapons (which were voluntary manslaughter). It thus modified precisely the common law "unlawful act" doctrine relied on by the court of appeals in Miller.
420. 419 Smith v. State, 20 So. 2d 701, 704 (Miss. 1945) (holding indifference as to consequences requires indifference under circumstances involving danger to life). The opaque opinion in McCaffrey v. State discussed the evidence in such detail and then dwelt on the inferences of either a weapon or the intent to inflict serious disabling injuries because a simple assault would not have supported the manslaughter conviction under challenge. 187 So. 740 (Miss. 1939).
In Jones v. State, the court assumed implicitly that manslaughter committed by cocaine poisoning of a sick eleven-month-old girl required culpable negligence, even though the prosecution proceeded under Miss. Code Ann. §§ 97-3-29, -39 (misdemeanor manslaughter and misdemeanor contributing to delinquency, respectively). 678 So. 2d 707, 710 (Miss. 1996). The court insisted that culpable negligence required wanton disregard of or utter indifference to the safety of human life. Jones, 678 So. 2d at 710-11 (quoting Campbell v. State, 285 So. 2d 891, 893 (Miss. 1973)).
The commission of several unlawful acts (delinquency, possession of cocaine) by themselves plainly did not satisfy the court's standard of culpable negligence. But the court emphasized that additional facts did support a finding of culpable negligence:
The jury could have reasonably found that [defendant parents] were culpably negligent by failing to obtain prompt medical attention and by not properly supervising their child which resulted in cocaine ingestion. It is the presence of cocaine in an eleven-month-old child and not necessarily the way in which it got there that evidences culpable negligence.Id. at 710.
421. 420 Miss. Code Ann. § 97-3-21 ("Every person who shall be convicted of capital murder shall be sentenced (a) to death; (b) to imprisonment for life in the State Penitentiary without parole; or (c) to imprisonment for life in the State Penitentiary with eligibility for parole as provided in Section 47-7-3(1)(f)."). See generally id. § 99-19-101 (discussing sentencing procedure in capital cases).
422. 421 Id. § 97-3-21 ("Every person who shall be convicted of murder shall be sentenced by the court to imprisonment for life in the State Penitentiary.").
423. 422 Id. § 97-3-25 ("Any person convicted of manslaughter shall be fined in a sum not less than five hundred dollars, or imprisoned in the county jail not more than one year, or both, or in the penitentiary not less than two years, nor more than twenty years.").
424. 423 Burge v. State, 472 So. 2d 392, 395 (Miss. 1985).
425. 424 536 So. 2d 1341, 1342 (Miss. 1988).
426. 425 Wheeler, 536 So. 2d at 1342.
427. 426 Id. at 1344.
428. 427 Clark v. State, 693 So. 2d 927, 929 (Miss. 1997). Justice Banks concurred in the result without opinion. Clark, 693 So. 2d at 933 (Banks, J., concurring).
429. 428 Id. at 933.
430. 429 Id.
431. 430 547 So. 2d 29, 33 (Miss. 1989) (reversing conviction on matter of evidence).
432. 431 Blanks, 547 So. 2d at 34.
433. 432 669 So. 2d 85, 87 (Miss. 1996).
434. 433 Tait, 669 So. 2d at 91.
435. 434 97-KA-01176-COA, ¶ 4, 726 So. 2d 251, 254 (Miss. Ct. App. 1998).
436. 435 Towner, 97-KA-01176-COA, ¶¶ 13-16, 726 So. 2d at 256. But see Scott v. State, 446 So. 2d 580, 583 (Miss. 1984) (holding failure to give accident instruction was reversible error where gun discharged during scuffle and instruction on excuse was limited to sudden combat).
437. 436 Juries have undoubtedly also acquitted in accidental shooting cases finding the death accidental and excusable. A model instruction liberally permits this defense, though its statutory authority is problematic. See Model Jury Instructions, supra note 92, § 8:15 (directing finding of excusable homicide where jury finds accidental shooting without intent to kill).
438. 437 More recent cases explain the difference between the two is that depraved heart murder requires a higher or more culpable form of risktaking or recklessness. Seeinfra note 438. This was also true under older authority that explained that murder differed from manslaughter only in that it required deliberation (or malice aforethought), but manslaughter did not. See Carter v. State, 25 So. 2d 470, 473 (Miss. 1946).
439. 438 Windham v. State, 602 So. 2d 798, 801 (Miss. 1992); see Jones v. State, 95-KA-01313-SCT, ¶ 35, 710 So. 2d 870, 878 (Miss. 1998) ("Malice too may be inferred when such a high degree of recklessness is involved, raising the level of the crime from `culpable negligence' manslaughter to `depraved heart' murder.") (citation omitted); Clark v. State, 693 So. 2d 927, 930 (Miss. 1997) (quoting Windham, 602 So. 2d at 801); Hurns v. State, 616 So. 2d 313, 320-32 (Miss. 1993) ("[Culpable negligence manslaughter] requires, and should, a much lesser showing of culpability than that required by the depraved heart murder section.").
440. 439 Windham, 602 So. 2d at 801; see also Johnson v. State, 475 So. 2d 1136, 1148 (Miss. 1985) (holding there was no error or prejudice in giving culpable negligence manslaughter instruction where jury convicted of depraved heart murder) (citing Flanagin v. State, 473 So. 2d 482, 487 (Miss. 1985)).
441. 440 See, e.g., Clayton v. State, 652 So. 2d 720, 726 (Miss. 1995); Windham, 602 So. 2d at 803; Bass v. State, 54 So. 2d 259, 262 (Miss. 1951); Roberson v. State, 121 So. 492, 492-93 (Miss. 1928).
In Clayton, the supreme court reversed a conviction of depraved heart murder where the jury was also instructed on culpable negligence manslaughter but where the instruction defined culpable negligence as requiring wilful acts. Clayton, 652 So. 2d at 724. The court specifically held, "Where the objective is to distinguish culpable negligence manslaughter from depraved heart murder the definition of culpable negligence should be limited to the definition given by this Court in Hurns[ v. State]." Id. at 726. The court's opinion did not address the fact that
Hurns, notwithstanding a judicial definition of culpable negligence, had actually held that requested culpable negligence instructions were properly omitted. See Hurns v. State, 616 So. 2d 313, 321 (Miss. 1993). Accordingly, it is not clear whether the court in Clayton meant to overrule the result in Hurns or to limit it to its facts.
442. 441 Clayton, 652 So. 2d at 726. This is consistent with the court's insistence that deliberate design be carefully defined so as not to prevent a finding of voluntary manslaughter. See Outlaw v. State, 1999-KA-00461-SCT, ¶¶ 14-15, 797 So. 2d 918, 921 (Miss. 2001).
443. 442 Heidel v. State, 587 So. 2d 835, 842 (Miss. 1991). This rule has been cited with approval in Jackson v. State, 645 So. 2d 921, 924 (Miss. 1994) and Goff v. State, 98-KA-00723-COA, ¶ 5, 778 So. 2d 779, 781 (Miss. Ct. App. 2000).
444. 443 Manuel v. State, 667 So. 2d 590, 593 (Miss. 1995) (citing Hester v. State, 602 So. 2d 869, 872 (Miss. 1992)).
445. 444 The Supreme Court discussed the pressure to convict a wrongdoer of a more serious offense in Beck v. Alabama, 447 U.S. 625, 637 (1980) (holding due process requires lesser included offense instruction in prosecution for capital crime to avoid risk of wrongful conviction from jury faced with all-or-nothing choice); see also Keeble v. United States, 412 U.S. 205, 212-13 (1973) (reversing conviction of assault with intent to commit serious bodily injury where jury was not instructed on lesser included offense of simple assault).
446. 445 Gaddis v. State, 42 So. 2d 724, 726 (Miss. 1949) (holding where defendant, drunk and angry, shot his wife without adequate provocation, voluntary manslaughter instructions were properly denied but that claim of unintentional killing was properly presented by jury instruction of culpable negligence manslaughter).
447. 446 Whitehurst v. State, 540 So. 2d 1319, 1326-27 (Miss. 1989) (discussing criteria for lesser included offense instructions and holding their omission reversible error under the circumstances). The statute there found to be a lesser included offense was subsequently amended to provide for more serious punishment. Seesupra notes 179-87 and accompanying text.
448. 447 1999-KA-01663-SCT, ¶ 5, 781 So. 2d 114 (Miss. 2001).
449. 448 Sanders, 1999-KA-01663-SCT, ¶ 6, 781 So. 2d at 116.
450. 449 Id. ¶ 15, 781 So. 2d at 119.
451. 450 Id.
452. 451 Id. ¶ 17, 781 So. 2d at 119-20.
453. 452 Id.
454. 453 Id. ¶ 17, 781 So. 2d at 120.
455. 454 98-KA-00723-COA, 778 So. 2d 779 (Miss. Ct. App. 2000).
456. 455 Goff, 98-KA-00723-COA, ¶ 3, 778 So. 2d at 781.
457. 456 Id.
458. 457 Id.
459. 458 Id. ¶ 13, 778 So. 2d at 783.
460. 459 Id. ¶¶ 5-6, 778 So. 2d at 781-82.
461. 460 Id. ¶ 6, 778 So. 2d at 782.
462. 461 See id. ("An intentional act that causes death cannot constitute culpable negligence.") (citing Hurns v. State, 616 So. 2d 313, 321 (Miss. 1993)).
463. 462 See supra note 196 and accompanying text.
464. 463 See supra notes 390-99 and accompanying text.
465. 464 Clark v. State, 693 So. 2d 927 (Miss. 1997).
466. 465 Sanders v. State, 1999-KA-01663-SCT, 781 So. 2d 114 (Miss. 2001).
467. 466 Fairman v. State, 513 So. 2d 910, 914 (Miss. 1987) (affirming murder conviction and holding omission of manslaughter instruction not error where appellant submitted instruction that trial court would have given but then withdrew the request as part of trial gamble that jury would acquit rather than convict of murder); Towner v. State, 97-KA-01176-COA, ¶ 9, 726 So. 2d 251, 255 (Miss. Ct. App. 1998) (holding defense's duty to preserve error required request for culpable negligence manslaughter instruction and thus finding no error where defendant withdrew request for instruction).
468. 467 Hurns v. State, 616 So. 2d 313, 320 (Miss. 1993).
469. 468 Hurns, 616 So. 2d at 320.
470. 469 Id. at 315-17.
471. 470 Id. at 320.
472. 471 Id. at 321.
473. 472 In addition to due process and vagueness challenges, the recent decision Bush v. Gore may suggest creative equal protection challenges where neither the trial courts nor appellate courts provide clear criteria for determining a material element of the offense. 531 U.S. 98, 105-06 (2000) (holding that state appellate court mandate to determine intent of individual voters violated equal protection in absence of specific standards to assure equal application).
474. 473 For a discussion of efforts to revise the code, see James L. Robertson & Michael H. Hoffheimer, Bar Committee Undertakes Rewrite of Criminal Code, Miss. Law., May-June 1994, at 12-15. Judge Tucker urges revising the South Dakota homicide statutes, which contain a provision similar to Mississippi's depraved heart murder. See Tim Dallas Tucker, State v. Black: Confusion in South Dakota's Determination of Lesser Included Offenses in Homicide Cases, 41 S.D. L. Rev. 465, 495 (1996).
475. 474 The Model Penal Code limits conscious risk creation to manslaughter and murder (when it evinces extreme indifference to the value of human life) but permits a conviction of negligent homicide without such awareness of risk. See generally Model Penal Code § 210.4 cmt. 3, at 85-88 (1980). Canadian constitutional law permits a conviction of murder only with proof of a subjective foresight of death. R. v. Martineau,  2 S.C.R. 633, 634 ("The principles of fundamental justice require that a conviction for murder be based upon proof beyond a reasonable doubt of subjective foresight of death."). See generally Ted Carlton, A Principled Approach to the Constitutional Requirement of Fault, 24 Ottawa L. Rev. 613 (1992); Nancy K. Thomson, Fundamental Justice, Stigma, and Fault, 52 U. Toronto Fac. L. Rev. 379, 380-81, 390-92 (1994). England also requires intent to kill or to inflict serious injury for murder. See supra note 42 and accompanying text.
476. 475 See supra note 1 and text accompanying note 263.
477. 476 See, e.g., Taylor v. State, 452 So. 2d 441, 450 (Miss. 1984) (affirming exclusion of expert testimony offered to show that murder defendant's abnormal mental condition prevented ability to form malice or deliberate design); see also Greenlee v. State, 97-KA-00507-SCT, ¶¶ 15-16, 725 So. 2d 816, 823 (Miss. 1998) (holding hallucination due to voluntary intoxication did not provide defense); McDaniel v. State, 356 So. 2d 1151, 1156 (Miss. 1978) (holding voluntary intoxication unavailable as general defense where defendant is sane when sober). See generally Jim Neeld et al., Note, Supreme Court Review-Criminal Law, 55 Miss. L.J. 77, 84-90 (1985) (exploring issue of whether expert testimony should be introduced as evidence to reduce murder to manslaughter).
478. 477 All killings prohibited by Mississippi Code sections 97-3-27 ("while such other is engaged in the perpetration of any felony, except those felonies enumerated"), 97-3-29 ("while such other is engaged in the perpetration of any crime or misdemeanor not amounting to felony . . . where such killing would be murder at common law"), and 97-3-33 ("while such human being is engaged in the commission of a trespass or other injury to private rights or property") require that the death occur as the result of the killer's "act, omission, or culpable negligence" and are thus by their terms within the general prohibition of section 97-3-47 (covering "[e]very other killing . . . by the act, procurement, or culpable negligence of another"). Miss. Code Ann. §§ 97-3-27, -29, -33, -47 (2000). The need for separate statutes grew out of their classification in 1839 as different degrees of manslaughter, punished differently. This disappeared in 1857. See supra text accompanying note 120. They have become superfluous as the statute originally drafted to cover residual kinds of killings has evolved into a general involuntary manslaughter statute. See supra notes 193-95 and accompanying text. And they have tended either to fall into desuetude or to resurface in the hands of clever defense counsel to the confusion and embarrassment of the courts. See supra note 119 (discussing cases).
The statute punishing as manslaughter killings without design by intoxicated persons practicing medicine, Miss. Code Ann. § 97-3-39, does not specify a culpable mental state but should not be assumed to thereby impose strict liability. Given the age of the statute, its drafters most likely understood it to require at least culpable negligence. The legislature should either repeal the statute if it requires culpable negligence or amend it to specifically provide for strict liability.
479. 478 Manslaughter for "unnecessarily" killing a victim who was committing a felony or doing an unlawful act has produced particular confusion. This statute (which does not include language of "without malice") was probably designed to mitigate deliberate design killings of wrongdoers from murder to manslaughter when they occurred in the absence of circumstances constituting excusable or justifiable homicide. The court has nevertheless held that the killing of a wrongdoer with "malice" constitutes murder not manslaughter. See Caldwell v. State, 381 So. 2d 591 (Miss. 1980) (reversing capital murder conviction where trial court omitted defense theory that killing of police officer during unlawful arrest should be mitigated to manslaughter); cf. Bangren v. State, 17 So. 2d 599, 600 (Miss. 1944), overruled on other grounds, Ferrell v. State, 97-KA-00941-SCT, 733 So. 2d 788 (Miss. 1999); Walker v. State, 189 So. 804, 806 (Miss. 1939) (killing without malice of person making improper arrest could not be murder).
The court's implicit requirement of lack of malice dispenses with the need for this statute. It is hard to imagine any killing that is not mitigated under the voluntary manslaughter statute, Miss. Code Ann. § 97-3-35, that deserves to be mitigated.
480. 479 The killings by overloading boats for gain require either "wilfully or negligently" receiving so many passengers and other elements. Miss. Code Ann. § 97-3-41. The statute concerning operators of steamboats and steam railroad engines does prohibit certain acts that occur through "ignorance or gross neglect," the scope of which is uncertain but may arguably be satisfied by proof of something less than culpable negligence. See id. § 97-3-43.
But the application of these statutes is extremely limited. Their mens rea element is problematic. And it is hard to imagine cases prosecuted under them
that do not otherwise satisfy the current standard of culpable negligence.
481. 480 The statute requires proof both that the defendant knew the dangerous propensity of the animal and willfully allowed it to run at large or kept it without ordinary care. Id. § 97-3-45. These are higher culpability requirements than culpable negligence. Nevertheless, the statute serves an important purpose by imposing manslaughter liability for resulting deaths that might be difficult to establish under normal causation requirements in the absence of the statute.
482. 481 Id. § 97-3-37; see supra notes 172-78 and accompanying text.
483. 482 Miss. Code Ann. § 97-3-35. The supreme court has altered the original understanding of this statute in suggesting that it imposes alternative grounds for mitigating murder to manslaughter--either lack of malice (which it identified with "heat of passion") or dangerous weapon. See Lanier v. State, 684 So. 2d 93, 97 (Miss. 1996) (reversing capital murder conviction where defendant claimed he unintentionally killed police officer victim while resisting unlawful arrest). But see Johnson v. State, 416 So. 2d 383 (Miss. 1982) (holding trial court properly refused manslaughter instruction not warranted by evidence and omitting deadly weapon requirement). While the court in Lanier decided the appeal by construing the elements of the voluntary manslaughter statute, the real issues were: 1) May a defendant use force or deadly force to resist an unlawful arrest by a police officer, and, if not, does the force or excessive force mitigate murder to manslaughter? And 2) did the defendant have sufficient mens rea for murder in shooting at victim? The court required an instruction permitting manslaughter for imperfect self-defense. Lanier, 684 So. 2d at 93.
The existence of heat of passion negating "malice" should be a matter for the jury once there is sufficient evidence from which a factfinder may infer either deliberate design or depraved heart. See Jordan v. State, 513 So. 2d 574, 575 (Miss. 1987) (affirming manslaughter conviction of defendant who killed wife's lover); Rogers v. State, 76 So. 2d 702, 704 (Miss. 1955) (stating that grade of homicide should be left to jury); Anderson v. State, 25 So. 2d 474, 476 (Miss. 1946) (leaving grade of homicide to jury); cf. Windham v. State, 520 So. 2d 123, 126 (Miss. 1987) (holding deliberate design instruction conflicted with definition of manslaughter as killing without malice in heat of passion). Likewise, the adequacy of provocation should generally be left to the jury. See Ruffin v. State, 444 So. 2d 839, 841 (Miss. 1984) (holding evidence of defendant arguing with wife and in
agitated state before shooting her sufficient to support manslaughter instruction). Legislation should prevent appellate courts from finding that evidence of a hot-blooded intentional killing is insufficient as a matter of law to support murder. But cf. Rowland v. State, 35 So. 826, 827 (Miss. 1904) (reversing murder conviction on theory that presence of adequate provocation prevented jury finding of deliberate design).
484. 483 The state relied on this confusing language to support its murder conviction in Windham, arguing that the omission of culpable negligence instructions was proper because section 97-3-47 "specifically excludes homicides falling under § 97-3-19(1)(b)." Windham v. State, 602 So. 2d 798, 801 (Miss. 1992). The court implicitly rejected the argument that depraved heart murder and culpable negligence manslaughter are mutually exclusive. Windham, 602 So. 2d at 801. It insisted, on the contrary, that they differed only in the degree of culpable recklessness. Id. The state's argument would have similar undesirable consequences in cases involving drunk driving deaths where the state should have the option of prosecuting for either aggravated DUI, culpable negligence manslaughter, or depraved heart murder.
485. 484 Fla. Stat. Ann. § 782.04(2) (West Supp. 2001) (defining second degree murder as homicide "perpetrated by an act imminently dangerous to another and evincing a depraved mind"); Minn. Stat. Ann. § 609.195(a) (West Supp. 2000) (defining third degree murder as "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life"); N.M. Stat. Ann. § 30-2-1 (Michie 1992) (defining first degree murder as homicide "by any act greatly dangerous to the lives of others, indicating a depraved mind, regardless of human life"); Okla. Stat. tit. 21, § 701.8 (1983) (defining second degree murder as homicide "perpetrated by an act imminently dangerous to another person and evincing a depraved mind regardless of human life"); S.D. Codified Laws § 22-16-7 (Michie 1998) (defining second degree murder as homicide caused by "act imminently dangerous to others and evincing a depraved mind"); see also id. § 22-16-8 (prescribing no intent to injure requirement for depraved mind murder). See generally Romero, supra note 243; Tucker, supra note 473, at 495.
486. 485 Fla. Stat. Ann. § 782.07(1) (defining manslaughter); Okla. Stat. tit. 21,
§ 716 (defining second degree manslaughter).
487. 486 See supra note 368 and accompanying text.
488. 487 For example, depraved heart murder could be defined as requiring either an act (with or without awareness) that created a high probability of death so as to evidence a disregard for human life or an act creating a risk of death accompanied by evidence of actual awareness of risk of death so as to evidence a disregard for human life.