Dressler,
pp. 263-266: Willa Cather—O Pioneers
We will discuss this reading as if this
were an examination question. By that I mean, I want you all to read the facts
and then be prepared to discuss each element of the offense (as we have
discussed the elements of crimes this semester), up to and including everything
you have learned to date about murder and manslaughter.
Treat this like a mini-practice
exam. For purposes of today's discussion, answer everything on the basis
of the
That is, assume you are in a state that
has the
Frank
killed Marie and Emil.
1. The voluntary
act was firing the gun three times.
2. The social
harm is the death of Emil and Marie.
3. The mens rea
is, arguably, recklessness.
4. Frank is the
“but for” cause of the deaths of Emil and Marie.
5. Frank is also
the proximate cause of the deaths of Emil and Marie. There isn’t an intervening cause.
This
act was not justified, so at common law, we at least have criminal homicide.
Is
there an excuse?
Let’s
see how his case would play out according to
Could
it be first degree murder?
Did
he “lie in wait”? If a prosecutor wanted
first degree murder, this would be one option.
The prosecutor could argue that the plain language of this clause is
descriptive of just what Frank did: he “peered through a hedge” and watched his
victims for some period of time before killing them. The defense would argue that this isn’t what
the legislators meant by “lying in wait”.
They would say that this should be interpreted as “waiting” somewhere
for someone else to show up, rather than coming upon someone who is already
there. The defense would also argue that
this clause is “conjoined” with the willful, premeditated, and deliberate
clauses in such a way that Frank’s conduct doesn’t fall under “lying in wait”.
Was
the killing “willful”? Yes, if Frank
had the “specific intent to kill”. The
defense would argue that he didn’t know what the heck he was doing.
Was
it “deliberate”? Not in the least.
Was
it “premeditated”? In
What
would constitute manslaughter in
Did
Frank have an intent to kill, which is to say, an awareness that the death of
another would result from his actions?
In other words, did he act purposely or knowingly?
Did
Frank intend to cause grievous bodily harm?
Did
Frank act with a “depraved heart”? That
is to say, did Frank act recklessly?
This sounds plausible. This would
keep us at second degree murder.
Was
Frank trying to commit a felony? Not as
far as we can tell.
Could
Frank use the partial excuse of “heat of passion”? The evidence in the story suggests that he
didn’t know consciously that he was seeing his wife have sex with
another man. However, arguing the
evidence in court, the defense could argue that Frank did see his wife having
sex with another man which traditionally goes toward establishing the partial
excuse of “heat of passion”.
So
my answer would be that Frank would get manslaughter. He acted with a “depraved heart” insofar as
he shot indiscriminately at people, which would get him first degree
murder. However, he did not act with
“premeditation”. That would leave him at
second degree murder. Finally, the “heat
of passion” excuse would knock him down to manslaughter.
In
a Model Penal Code jurisdiction, manslaughter would be a somewhat clearer
choice. Frank could either get
manslaughter due to his recklessness or due to his seeming extreme emotional
disturbance (if it is found to be reasonable).