UNIT SIX - Unintentional Killings, e.g., Depraved Heart (Extremely Reckless) Murder, Involuntary (Reckless) Manslaughter, Criminally Negligent Homicide
These note about criminal homicide will on murders that don't actually involve a mens rea of "intent to kill." The idea of depraved heart (or mind in NY) murder (extreme recklessness, indifference to the value of human life) seems to be illustrated by an old case, Commonwealth v. Malone, 47 A.2d 445 (Pa. 1946), where Malone shot a kid while playing what you could call "modified" Russian Roulette - the safe kind I like where you put a gun to the other guy's head and pull the trigger. Another example of depraved heart murder can be found in another old case, People v. Berry, 556 P.2d 777 (Cal. 1976), where Berry's pit-bull killed Jimmie Soto, a toddler, who wandered within range of the dog; this scenario could apparently qualify as the California version of depraved heart murder (implied malice aforethought). [Note: There's also a more recent fascinating depraved heart murder case from California where a female victim was killed by two Presa Canario dogs. See People v. Knoller, 59 Cal. Rptr. 3d 159 (Cal. 2007). See also State v. Davidson, 987 P.2d 335 (Kansas 1999). But see State v. Bash, 925 P.2d 978 (Wash. 1996). Note also that 29 states have strict tort liability for dog-bite injuries. If you're interested in fighting dogs look at Off the Chain, an interesting video documentary about pit bulls.] Can you think of another example of a crime where depraved heart (extreme recklessness displaying a conscious indifference to human life) might conceivably be used as the mens rea of murder? I can, and it has to do with dead babies. Yes, it's the Shaken Baby Syndrome murders where a baby-sitter doesn't knowingly or intentionally kill the baby. Instead, the sitter loses her cool and violently shakes the baby rupture of vessels in the brain and consequent bleeding that causes coma and death. [Note: There are some reputable members of the scientific community who distrust the science behind the SBS. Read about that for yourself.] You won't find depraved heart as a culpable mental in Texas murder, Sec. 19.02 (b) TPC; it's pretty clear that this is one of the forms of common law malice aforethought that wasn't embraced by the 1974 revision of the Texas Penal Code. We've learned that the common law did recognize depraved heart (what might be best viewed in modern terms as super recklessness evincing an extreme indifference to the value of human.) The prof said two graphic examples of depraved heart murder might be shooting a razor-tip arrow up into the air over a very crowded beach or firing a deer rifle into a passenger train - both supposedly done by a person who actually didn't intend to kill anyone. Depending on how many people were present on the beach, e.g., one or 10,000, Texas might handle that situation with several different culpable mental states, e.g., "knowingly" (where actor is aware that the result is reasonably certain to occur) or maybe recklessly (where the actor consciously disregards the substantial and unjustifiable risk that someone may be killed and that disregard in a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint) or criminally negligent (the actor wasn't aware of but ought to have been aware of the substantial and unjustifiable risk that death would occur and the failure to perceive the risk was a gross deviation from the standard of care that an ordinary person would have exercised under all the circumstances as viewed from the actor's standpoint). The point is that if there are only a couple of people on an enormous stretch of beach rather than a beach where people are stacked like cordwood, the mens rea of the arrow shooter may not be c/l depraved heart; instead, it may be nothing greater than recklessness (not extreme recklessness) or perhaps criminal negligence or conceivably nothing more than ordinary tort negligence or simple accident.
I'm beginning to see how important mens rea (culpable mental state) is. State of the actor's mind seems to be the main thing that distinguishes these various criminal homicides from one another and also distinguishes between non-criminal homicide and criminal homicide. Of course, common law F/M, an accidental killing during the course of a felony, seems to haves its own separate reason for existence.
The MPC Sec. 210.2(1)(b) talks about recklessness that is reflected (manifested) by "extreme" indifference to the value of human life. It seems to approximate the concept of "depraved heart," but with less flowery descriptive lingo and a more understandable brain-based definition.
I suppose one reason why malice aforethought murder was not viewed as a specific intent crime at common law is because there are three ways of having malice aforethought without an intent to kill, i.e., felony murder, depraved heart, and intent to inflict serious or grievous bodily injury short of death that causes death.
Note: Take a look at Texas' (strict liability) intoxication manslaughter under Sec. 49.08 TPC along with Sec. 49.11 TPC and Sec. 6.02(b). (It makes sense not to require the prosecution to prove a culpable mental state because a drunk who gets behind the wheel and kills someone because of the drunken driving is probably reckless per se. So, why force the prosecution to prove it, if it's already there?) I can't find a crime analogous to TPC intoxication manslaughter in the c/l or the MPC. Among those three bodies of law, it seems peculiar to Texas.
Misdemeanor-manslaughter (stepchild of felony/murder), the doctrine that a death occurring during the commission of a misdemeanor (or sometimes a non-dangerous felony) is involuntary manslaughter, is recognized at common law, but not under the TPC, MPC or the law of many states.
Involuntary manslaughter is recognized by the C/L.. Texas and MPC don't divide manslaughter into two crimes like the c/l. Instead, it's one crime, manslaughter. TPC and MPC have the crime of criminally negligent homicide instead, which the c/l doesn't. It's clear that Texas and the MPC recognize the mens rea of criminal (gross) negligence. Even though the MPC describes the culpability only as negligence, Section 2.02 (2) (d) MPC describes the risk of which the accused is unaware as being of such a nature that the failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the accused's situation. Negligent homicide is almost the only crime I can find in the MPC that uses the culpability element of (criminal) negligence one other is criminal mischief under Section 220.3 (1) (a).
There's a famous old case from the 1940's involving a deadly fire at the Coconut Grove nightclub. The case, Commonwealth v.Welansky, involved a judge trying to sort out the difference between c/l recklessness and criminal negligence and which of those was the mens rea for c/l involuntary manslaughter. Recklessness was the apparent mens rea of involuntary manslaughter with extreme recklessness in the form of depraved heart being one form of c/l malice. Another even more fascinating locked door fire case is the Triangle Shirtwaist Fire of 1911 - where 147 people perished and the owners were acquitted of manslaughter under jury instructions that required proof of actual knowledge by the owners that the doors were locked.This devastating fire was the subject of a recent book - David Von Drehle, Triangle: The Fire that Changed America."
Note: In keeping with his practice for the past ten years, the teacher asked the Herculean person who made the top grade on recent criminal law exams to make a Top Gun" videotape telling us how s/he went about studying for the exam. I watched a 10 minute tape, and was useful. It gave me hope that I can ace the exam if I just keep studying! It's definitely a mistake to wait until the last minute to start reading in this course. I'm going to try to follow the student's advice. A desultory (I've been trying to find a place to use that word.) attitude doesn't seem to work too well in this place. "Nice marmot," sayeth the Dude.