tag:blogger.com,1999:blog-4098620.post109926792203280540..comments2024-03-15T04:02:42.341-04:00Comments on CrimLaw: Scott Peterson - The Jury InstructionsUnknownnoreply@blogger.comBlogger1125tag:blogger.com,1999:blog-4098620.post-1099326970013103592004-11-01T11:36:00.000-05:002004-11-01T11:36:00.000-05:00Taking a quick look at CA's homicide statutes, I t...Taking a quick look at CA's homicide statutes, I think it tracks many of the older statues that define first degree murder and then say, blandly, all outher murder is second degree murder. (CA Penal Code sec. 189) A number of the older statutes stop there, leaving to the common law the definition of murder. California complicates the matter by defining murder in section 187 as "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." This is close to the black letter definition you can find in case law, with some variation, in almost every jurisdiction. In the states I am familiar with, "malice aforethought" and premeditation are not the same thing. Now, they try and define malice in section 188, but I don't think they do a very good job of it. The usual common law defintion is malice for 2nd degree murder can be supplied by an intent to kill, an intent to cause great bodily harm, or the intentional doing of an act the natural tendecy of which is to create a likilhood of death or gread bodily harm. <br /><br />In section 192, CA defines voluntary manslaughter as, " Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:<br /> "(a) Voluntary--upon a sudden quarrel or heat of passion."<br /><br />This is pretty much the common law defintion. What I think is going on (finally, everyone - he's getting to the point!) is that the trial judge is applying a form of the federal rule on lesser included offences. <br /><br />Most jurisdictions that have considered the issue find manslaughter to be a necessarily included offense of murder. That is, if an unlawful, unjustified killing is done with "malice" it is murder. The question of 1st or 2nd degree is answered by the existance, or lack of one of the enumeraged aggravating factors. If the killing is without malice, it is manslaughter. The only difference between murder and manslaughter is the element of malice. So what, you may be asking?<br /><br />Those states that follow the federal view of lesser incuded offense instructions typically phrase the rule something like, "if requested, instruction on the lesser offense must be given, if supported by a rational view of the evidence." Or, "instruction on an included offense need only be given if a rational trier of fact would be justified in convicting of the lesser rather than the greater."<br /><br />Without spending a lot of time on the starange and wonderful world of California law, and more time than it maybe deserves on the proofs at trial, that's my best guess. There is clearly a Catch-22 at work in some jurisdictions. If the defendant flatly denies being responsible for the death (isn't this Peterson's defense?) There will be no issue of sudden heat of passion as a mitigating factor. <br /><br />Just my 25 cents.Mister DAhttps://www.blogger.com/profile/12557780546647365805noreply@blogger.com