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92.7 Intentional Murder

    92.7.2 Intentional Murder: Intent And Malice Issues

    92.7.2.1 Intentional Murder: Definition Of Intent To Kill
    92.7.2.2 Improper To Presume Intent To Kill From Use Of Deadly Weapon
    92.7.2.3 Mutual Combat As Defense Theory To Negate Malice
    92.7.2.4 Intentional Murder: Concurrence Of Act And Intent To Kill
    92.7.2.5 Intentional Homicide: Error To Focus Instruction On Defendant’s Use Of Gun
    92.7.2.6 Intentional Homicide: Shooting At Close Range Does Not Conclusively Establish Intent To Kill
    92.7.2.7 No Accomplice Liability For Intentional Murder Unless Perpetrator Harbored Express Malice Or Intended To Kill

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 VOLUME 7 - CHAPTER 92

    92.7.2.1    Intentional Murder: Definition Of Intent To Kill

    See FORECITE National™ 92.1.8 [Homicide: Definition Of Intent To Kill].

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    92.7.2.2    Improper To Presume Intent To Kill From Use Of Deadly Weapon

PRACTICE NOTE: See Dickey v. Lewis (9th Cir. 1988) 859 F2d 1365, 1368-69; State v. Mayo (WV 1994) 443 SE2d 236, 243.

    See also FORECITE National™ 92.13.3.2 [Intent To Kill Cannot Be Presumed From Commission Of A Dangerous Crime].

    See also FORECITE National™ 300.5.4 [Irrational Use Of Permissive Inference].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.14 [Murder].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

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 VOLUME 7 - CHAPTER 92

    92.7.2.3    Mutual Combat As Defense Theory To Negate Malice

PRACTICE NOTE: See U.S. v. Hardin (DC Cir. 1970) 443 F2d 735, 738; Spradlin v. State (GA 1954) 82 SE2d 238, 243; People v. Leonard (IL 1980) 415 NE2d 358, 363.

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.14 [Murder].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

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    92.7.2.4    Intentional Murder: Concurrence Of Act And Intent To Kill

RATIONALE: Even if the defendant had an intent to kill before or after the act which caused death, there is no concurrence of act and intent unless the intent existed at the time of the act.

POINTS AND AUTHORITIES: See FORECITE National™ 43.5 [Requirement That Criminal Intent And Requisite Mental State Concur With Criminal Act]; FORECITE National™ 92.1.8 [Homicide: Definition Of Intent To Kill].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.7; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.14 [Murder].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION:

    Intent to kill must be formed at the instant preceding the act or sometime before that and continue to exist at the time of the act.

[Cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1010 [First Degree Intentional Homicide] para. 7 (University of Wisconsin Law School, 2000).]

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    92.7.2.5    Intentional Homicide: Error To Focus Instruction On Defendant’s Use Of Gun

PRACTICE NOTE: In State v. Jenkins (WV 1994) 443 SE2d 244 the jury was instructed, inter alia, as follows:

    "If...the jury believes beyond a reasonable doubt that...[the defendant] committed the crime of 'murder in the first degree' by shooting with a deadly weapon the deceased, then...[the defendant] may be found guilty of murder in the first degree[.]"

    The court held that this instruction was erroneous because it focused on the single fact of shooting with a deadly weapon. All other elements of first degree murder were subsumed in this one finding. The jury was not asked to infer or presume but, in effect, was told if the deceased was shot with a deadly weapon, then first degree murder occurred. (Jenkins, 443 SE2d at 248.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.14 [Murder].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

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 VOLUME 7 - CHAPTER 92

    92.7.2.6    Intentional Homicide: Shooting At Close Range Does Not Conclusively Establish Intent To Kill

PRACTICE NOTE: A shooting at close range does not necessarily demonstrate an intent to kill. (See People v. Ratliff (CA 1986) 41 C3d 675, 695 [224 CR 705]; see also Braxton v. United States (1991) 500 US 344, 349 [111 SCt 1854; 114 LEd2d 385] [shooting "at a marshal" establishes "a substantial step toward [attempted murder], and perhaps the necessary intent." [Original emphasis].) A shooting at close range, therefore, could permit instruction upon lesser included homicides not requiring an intent to kill such as involuntary manslaughter. (See e.g., People v. Woods (CA 1991) 226 CA3d 1037, 1051-52 [277 CR 269].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.14 [Murder].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

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    92.7.2.7    Intentional Murder: No Accomplice Liability For Intentional Murder Unless Perpetrator Intended To Kill

RATIONALE: Unless the perpetrator intended to kill or harbored express malice he or she has not committed murder, and, hence, the aider and abettor should not be convicted of murder.

POINTS AND AUTHORITIES: In California an accomplice does not need to personally form the required intent to commit the charged offense. Rather the accomplice/aider and abettor must intend to aid, encourage, etc., the perpetrator in committing the offense. (See FORECITE National™ 64.1 [Accomplice Liability: Intent And Knowledge Elements]; compare People v. Flowers (MI 1992) 477 NW2d 473, 478 [accomplice must have malice but participation in crime with knowledge of perpetrator's intent to kill constitutes wanton and willful disregard]; State v. Arnold (NE 1998) 572 NW2d 74, 79 [when crime requires existence of particular intent, alleged aider or abettor/accomplice can be held criminally liable as principal if it is shown that accomplice knew that perpetrator of act possessed required intent or that accomplice himself or herself possessed such intent].)

    Hence, in California if a defendant charged with attempted murder or completed malice murder as an aider and abettor, the perpetrator (actual killer) must have the requisite express malice (intent to kill) and the jury must be so instructed. (People v. Patterson (CA 1989) 209 CA3d 610, 614-15 [257 CR 407].) Moreover, the aider and abettor must act (1) with knowledge of the perpetrator's "criminal purpose" (i.e., intent to kill unlawfully) and (2) with an intent or purpose to aid and abet the commission of the offense (i.e., the intended murder). (See also Patterson, 209 CA3d at 616-17.)

USE NOTES: This instruction is applicable when murder or attempted murder was the target offense. (See People v. Jones (CA 1989) 207 CA3d 1090, 1095 [255 CR 464].) If there is another target offense then the aider and abettor need only have intended to facilitate the commission of that offense. (Ibid; see also People v. Croy (CA 1985) 41 C3d 1, 12 fn 5 [221 CR 592].) However, he must still have acted with knowledge of the perpetrator's intent to murder or the murder must be a natural and probable consequence of the target crime. (Ibid.)

    See also FORECITE National™ 65.1.2 [When Is First Degree Murder A Natural And Probable Consequence Of The Target Offense].

   See also FORECITE National™ 64.3.1 [Requirement That Guilt Of Perpetrator Be Proven: Accomplice Tried Separately].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.14 [Murder].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION:

    In order to prove a particular defendant guilty as an aider and abettor to the crime of [attempted] murder, each of the following must be proven beyond a reasonable doubt: [¶] 1. [The perpetrator] [insert perpetrator's name] [personally killed] [committed a direct but ineffectual act toward killing] another human being. [¶] 2. [The perpetrator] [insert perpetrator's name] committed [the killing] [the ineffectual act] with malice aforethought; namely, a specific intent to kill unlawfully another human being; and, [¶] 3. __________ [insert name of defendant accused of aiding and abetting the perpetrator] had knowledge of the perpetrator's intent to kill unlawfully; and, [¶] 4. With the intent or purpose of committing, encouraging, or facilitating the commission of murder, by act or advice, aided, promoted, advised and encouraged or instigated the commission of the [attempted] murder.

[Source: FORECITE National™.]