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 VOLUME 11 - CHAPTER 252
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252.2 Accident

    252.2.1 Accident: Reasonable Doubt Favors Defendant
    252.2.2 Accident: Should Not Be Referred To As A "Defense"
    252.2.3 Accident Or Misfortune: Definition
    252.2.4 Negligent Homicide: Defendant's Right To Instruction That Accident Was Caused By The Other Person's Negligence
    252.2.5 Accident: No Inference Of Intent From Use Of Weapon
    252.2.6 Accidental Killing While Acting In Self Defense

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RATIONALE: Where accident negates an element of the charge special instruction may be necessary to assure that the jury does not place the burden on the defendant.

POINTS AND AUTHORITIES: In most jurisdictions the defense of accident negates the criminal intent element of an intentional crime such as homicide. Absent a statute to the contrary, the prosecution has the burden of proving beyond a reasonable doubt that a homicide was intentional and not accidental.  (Wharton’s Criminal Law (West, 15th Ed. 1993) [Homicide by Accident] § 138, pp. 238-39.)

    The burden normally remains with the prosecution because a defense of accident is a claim that an element of a charged homicide is missing. Thus, if an instruction on accidental homicide is given, it should require the prosecution to prove beyond a reasonable doubt that the necessary elements of the charge are proved regardless of whether defendant claims accident. For example, it is improper to suggest to the jury that the defendant must show that the shooting was accidental.  (See People v. Lester (MI 1979) 277 NW2d 633, 635; State v. Poole (OH 1973) 294 NE2d 888, 890 [defense that the gun used in the killing accidentally discharged is not an affirmative defense, and a charge to the jury that the burden of proving such defense by a preponderance of the evidence rests upon the defendant is erroneous]; Hodge v. Commonwealth (VA 1976) 228 SE2d 692, 698.) "The plea of accidental homicide imposes no burden upon the defendant because the State cannot convict unless it first proves that the killing was culpable. The claim that the killing was accidental goes to the very gist of the charge, and denies all criminal intent, and throws on the prosecution the burden of proving such intent beyond a reasonable doubt." (State v. Caddell (NC 1975) 215 SE2d 348, 367.)

    In sum, if the evidence of accident leaves the jury with a reasonable doubt that the defendant acted intentionally the defendant must be acquitted. (See State v. Bridges (LA 1921) 90 So 217 [if all of the evidence in the case left a reasonable doubt on the question of accident, the defendant was entitled to an acquittal]; Martin v. Commonwealth (VA 1977) 235 SE2d 304; see also FORECITE National™ 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction].)

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

Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(A)(1) [Lawful Use Of Weapon-Defense] p. 109 (South Carolina CLE, 1994).

Annotation, Homicide, Burden Of Proof On Defense That Killing Was Accidental, 63 ALR3d 936.

See generally, FORECITE National™ 305.1.3 [Accident].

SAMPLE INSTRUCTION # 1:

    If, after consideration of all the evidence, you have a reasonable doubt as to whether or not the __________ [insert act or omission which is charged] was an accident, you must resolve the doubt in favor of the defendant and [bring in a verdict of not guilty] [find criminal intent to be absent].

[Source: FORECITE National™.]

    The defendant is not required to prove that the killing was accidental.  Rather, the prosecution has the burden of proving beyond a reasonable doubt that the killing was intentional and not accidental. If after considering all the evidence you have a reasonable doubt that the killing was intentional, then you must vote to find the defendant not guilty.

[See Johnson v. Commonwealth (VA 1949) 51 SE2d 152, 155; see also VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 33.850 [Accidental Killing] p. I-811 (Lexis, 2000).]

    It is the duty of the Commonwealth to prove in this case that [_____________] intentionally or willfully shot and killed [________________]. If the evidence in this case raises* in the minds of the jury a reasonable doubt as to whether [______________] killed [_______________] intentionally or accidentally, the jury must find [______________] not guilty.

* But see FORECITE National™ 270.3.4 [Improper To State that Defendant Must "Raise" Or "Create" Reasonable Doubt].

[Source: Farrow v. Commonwealth (VA 1955) 89 SE2d 312, 318.]

    An issue of accidental killing has been raised in this case. However, this does not shift* to the accused the burden of proving that the homicide occurred by accident or misadventure. Where an issue of accidental killing is presented, the burden rests upon the prosecution to show that the killing was willful and intentional, or that it was due to the reckless disregard for the safety of others.

*But see FORECITE National™ 6.2.20 [Avoiding Language That Burden Never "Shifts" To Defendant].

[See generally People v. Lester (MI 1979) 277 NW2d 633, 634.]

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    252.2.2    Accident: Should Not Be Referred To As A "Defense"

PRACTICE NOTE: Because an act committed by accident is done without criminal intent, it should be the prosecution's burden to disprove accident beyond a reasonable doubt. (See Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(E) [Mistake/Accident] p. 317 (South Carolina CLE, 1994).) Hence, it may mislead the jury to refer to accident as a "defense" since such a reference may imply to the jury that the defendant must prove that the act was accidental.

    See also FORECITE National™ 6.2.12 [Defense Theory That Negates Element Should Not Be Referred To As A "Defense"].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.3 [Accident].

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PRACTICE NOTE: In a homicide situation "misfortune" means that, without unlawful intent, the lawful conduct of a person unfortunately caused the death of another. (Adams v. State (OK 1951) 228 P2d 195, 197-98.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.3 [Accident].

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PRACTICE NOTE: In Williams v. State (OK 1976) 554 P2d 842, it was held to be reversible error to refuse to permit the defendant to establish that the lack of care evidenced by the conduct of the deceased, rather than the defendant's own conduct, caused the accident.

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.3 [Accident].

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 VOLUME 11 - CHAPTER 252

PRACTICE NOTE: An instruction that unlawful intent may be inferred from use of a deadly weapon is erroneous. (See e.g., Walker v. State (MS 1927) 112 So 673; but see Smith v State (MS 1949) 38 So2d 725 [instruction that malice may be inferred from the use of a deadly weapon].)

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

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.3 [Accident].

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 VOLUME 11 - CHAPTER 252

    252.2.6    Accidental Killing While Acting In Self Defense

    See FORECITE National™ 253.4.2.7 [Instruction On Both Self Defense And Accident].

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.3 [Accident].