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VOLUME 5 - CHAPTER 59
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59.5 Requirement That Victim Be Alive

    59.5.1 General Principles 59.5.2 Kidnapping: Defense Theory That Victim Was Not Alive During The Asportation
    59.5.2 Kidnapping: Defense Theory That Victim Was Not Alive During The Asportation
    59.5.3 Homicide: Requirement That Victim Be Alive At Time Of Homicidal Act
    59.5.4 Good Faith Belief That Victim Was Dead As Defense Theory

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VOLUME 5 - CHAPTER 59

PRACTICE NOTE: A dead person is not a "human being." (See State v. Kingsley (KS 1993) 851 P2d 370, 384.) Hence, in situations where the victim is already dead, offenses which require a "human being" as an element (e.g., kidnapping (FORECITE National™ 93.1.3.1 [Kidnapping: Defense Theory That Victim Was Not Alive During The Asportation]), torture (FORECITE National™ 92.10.3.3 [Murder By Torture: Defense Theory That Victim Was Not Alive When Injuries Were Inflicted]), rape (FORECITE National™ 101.1.5.5 [Rape/Sex Crimes: Good Faith Belief That Victim Was Dead As Defense Theory]), homicide/murder (FORECITE National™ 92.1.7 [Homicide/Feticide: Defense Theory That Defendant Believed The Victim Was Already Dead]), the fact that the person is already dead may be the basis for a defense theory. (See e.g., Sanborn v. Commonwealth (KY 1988) 754 SW2d 534, 549 [discussion of abuse of a corpse as a defense theory against charges of kidnapping, rape and sodomy].)

    A similar defense theory may be available as to a murder charge based on the death of a newborn baby. "The prosecutor has the burden of proving that the child was born alive...." [Footnotes omitted.] (Wharton’s Criminal Law (West, 15th ed. 1993) § 116, pp. 140-41; see also FORECITE National™ 92.1.6 [Homicide: Requirement That Victim Be Alive At Time Of Homicidal Act]].)

    See also FORECITE National™ 92.7.3.17 [Premeditation And Deliberation: Abuse Of Body After Victim Is Dead Not Relevant].

    See also FORECITE National™ 92.9.2.5 [Felony Murder: Killer Other Than Perpetrator Of Underlying Crime].

    See FORECITE National™ 93.1.3.1 [Kidnapping: Defense Theory That Victim Was Not Alive During The Asportation].

    See FORECITE National™ 92.1.6 [Homicide: Requirement That Victim Be Alive At Time Of Homicidal Act].

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VOLUME 5 - CHAPTER 59

    See FORECITE National™ 92.10.3.3 [Murder By Torture: Defense Theory That Victim Was Not Alive When Injuries Were Inflicted].

    See FORECITE National™ 92.1.7 [Homicide/Feticide: Defense Theory That Defendant Believed The Victim Was Already Dead].

    See FORECITE National™ 93.1.3.2 [Kidnapping: Good Faith Belief That The Victim Was Dead As Defense Theory].

    See FORECITE National™ 101.1.5.4 [Rape/Sex Crimes: Defense Theory That Victim Was Not Alive].