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If two people get into a fight after drinking then a full five…

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If two people get into...
If two people get into a fight after drinking then a full five minutes later one of these individuals goes after the other striking and killing them with a beer bottle, would this be considered 2nd degree murder since it was caused by dangerous conduct and the offender's obvious lack of concern for human life.
Submitted: 8 years ago.Category: Legal
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Answered in 21 minutes by:
6/22/2010
Lawyer: Alexia Esq., Managing Attorney replied 8 years ago
Alexia Esq.
Alexia Esq., Managing Attorney
Category: Legal
Satisfied Customers: 13,637
Experience: 19 Years of Legal Practice Experience in this precise field.
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Dear btf, it really depends on the attendant circumstances, and what they reveal upon investigation - as this may not be murder but may be manslaughter.

 

In CA, first, it must be found to be murder:

 

187. (a) Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.

 

We can pretty much figure that they will find it to be an unlawful killing - so the question is, is there malice aforethought?

 

188. Such malice may be express or implied. It is express when
there is manifested a deliberate intention unlawfully to take away
the life of a fellow creature. [Did he say, "now I'm going to kill you with this bottle?" or did he say, during the previous fight: "Watch your back, You'll never make it home tonight." This could be such a manifestation. ] It is implied, when no considerable
provocation appears, or when the circumstances attending the killing
show an abandoned and malignant heart.


When it is shown that the killing resulted from the intentional
doing of an act with express or implied malice as defined above, no
other mental state need be shown to establish the mental state of
malice aforethought. Neither an awareness of the obligation to act
within the general body of laws regulating society nor acting despite
such awareness is included within the definition of malice.

In this case, it is not clear on these facts that malice aforethought existed, but if the facts to end up showing same, then you go to the next step, is it murder 1 or murder 2?

 

If is not first degree, it is second degree and the two are defined here:

 

189. All murder which is perpetrated by means of a destructive
device or explosive, a weapon of mass destruction, knowing use of
ammunition designed primarily to penetrate metal or armor, poison,
lying in wait, torture, or by any other kind of willful, deliberate,
and premeditated killing
, or which is committed in the perpetration
of, or attempt to perpetrate, arson, rape, carjacking, robbery,
burglary, mayhem, kidnapping, train wrecking, or any act punishable
under Section 206, 286, 288, 288a, or 289, or any murder which is
perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the
intent to inflict death, is murder of the first degree. All other
kinds of murders are of the second degree.

 

Thus, if they find that the killer acted with premeditation, it could be 1st degree - ie. if he intended the victim to be killed, as opposed to just cut up/bruised, if it was willful and deliberate. If they are not finding the premediation, since it was a bottle, not a gun/explosive, etc., it would likely be second degree.

 

Good chance that this could be manslaughter, if there is no major evidence to show malice aforethought ... (the gross negligent aspect of "wanton and conscious disregard for life" appears to apply when the manslaughter is vehicular, and could pop it back into implied malice but that does not appear to be the case outside of vehicular death):

 

192. Manslaughter is the unlawful killing of a human being without
malice. It is of three kinds:
(a) Voluntary--upon a sudden quarrel or heat of passion.
(b) Involuntary--in the commission of an unlawful act, not
amounting to felony; or in the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and
circumspection. This subdivision shall not apply to acts committed in
the driving of a vehicle.......
"Gross negligence," as used in this section, shall not be
construed as prohibiting or precluding a charge of murder under
Section 188 upon facts exhibiting wantonness and a conscious
disregard for life to support a finding of implied malice
, or upon
facts showing malice, consistent with the holding of the California
Supreme Court in People v. Watson, 30 Cal. 3d 290.

 

 

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Customer reply replied 8 years ago
Thank you for the information provided. In these circumstances there was no intention to kill the victim only a continuation of the fight. After carefully reading your answer I need a little more clarified if you would. Obviously the killer meant to do harm so there was malice, since any sane person would know hitting someone on the head with full force with a full beer bottle will inflict some kind of injury. Also when you wrote: When it is shown that the killing resulted from the intentional
doing of an act with express or implied malice as defined above, no
other mental state need be shown to establish the mental state of
malice aforethought. Neither an awareness of the obligation to act
within the general body of laws regulating society nor acting despite
such awareness is included within the definition of malice.
This statement seems to apply so if that is true than is it more likely involuntary manslaughter than 2nd degree murder? I'm using your answers for information only on a case study. Thank in advance for your help.
Customer reply replied 8 years ago
One more questions.. Do the malice theories need to be asked/questioned only in the case of 1st and 2nd degree murder?
Lawyer: Alexia Esq., Managing Attorney replied 8 years ago

Hi btf,

 

Going by the CA legislature/statutes noted above,

 

It would seem that malice aforethought must be the intent to kill, not just the intent to hit him with a bottle in furtherance of the fight and cause injury...this would be my argument, based on the statute's language "intention unlawfully to take away the life of a fellow creature..." - since it does not say "with the intention unlawfully to cause injury of a fellow creature".

 

Yes, I believe that malice must be asked and found to find murder, without it, it is manslaughter, going by the penal code. Thus, if a charge of manslaughter were made, but not murder, the jury would not be charged with the question of 'is there malice.'

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