Dallas policer officer that killed black man
- Thread starter tlwwake
- Start date
No.
Malice aforethought is NOT included in Second Degree Murder.
I cited the danged statutes in Oklahoma.
“Malice aforethought” IS intentional design to cause serious bodily harm or death to a particular individual.
So what murders do not require malice aforethought?
2nd degree murders.
Murders under the felony murder doctrine.
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From the Texas State Capitol site. I believe these laws are current through 2019, though the law in effect at the time of the crime would govern.
https://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm
https://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm
I was referencing the common law definition of murder (since I was giving a general definition after all). I was not defining all the degrees of murder according to an individual state statute or even referring to Oklahoma at all. Malice aforethought is the state of mind necessary for common law murder. It is also included in second degree murder. Premeditation is not though.
Motive however doesn't have to be proven.
From the Texas statutes (Can’t believe I’m saying this, but thanks @soonerinlOUisiana ....
CHAPTER 19. CRIMINAL HOMICIDE
Sec. 19.01. TYPES OF CRIMINAL HOMICIDE. (a) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.
(b) Criminal homicide is murder, capital murder, manslaughter, or criminally negligent homicide.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1973, 63rd Leg., p. 1123, ch. 426, art. 2, Sec. 1, eff. Jan. 1, 1974; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 19.02. MURDER. (a) In this section:
(1) "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.
(2) "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
(b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
(c) Except as provided by Subsection (d), an offense under this section is a felony of the first degree.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.
(Emphasis added by me)
2nd degree murder by definition does not require malice aforethought.
CHAPTER 19. CRIMINAL HOMICIDE
Sec. 19.01. TYPES OF CRIMINAL HOMICIDE. (a) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.
(b) Criminal homicide is murder, capital murder, manslaughter, or criminally negligent homicide.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1973, 63rd Leg., p. 1123, ch. 426, art. 2, Sec. 1, eff. Jan. 1, 1974; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 19.02. MURDER. (a) In this section:
(1) "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.
(2) "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
(b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
(c) Except as provided by Subsection (d), an offense under this section is a felony of the first degree.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.
(Emphasis added by me)
2nd degree murder by definition does not require malice aforethought.
I agree motive is never an element of the crime.
You were discussing a specific court decision from a specific state court.
Then you challenged me to identify murders that don’t include malice aforethought.
And I did.
And then this.
And it’s not.
From the Texas statutes (Can’t believe I’m saying this, but thanks @soonerinlOUisiana ....
CHAPTER 19. CRIMINAL HOMICIDE
Sec. 19.01. TYPES OF CRIMINAL HOMICIDE. (a) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.
(b) Criminal homicide is murder, capital murder, manslaughter, or criminally negligent homicide.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1973, 63rd Leg., p. 1123, ch. 426, art. 2, Sec. 1, eff. Jan. 1, 1974; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 19.02. MURDER. (a) In this section:
(1) "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.
(2) "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
(b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
(c) Except as provided by Subsection (d), an offense under this section is a felony of the first degree.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.
(Emphasis added by me)
2nd degree murder by definition does not require malice aforethought.
How are you defining malice aforethought? It seems you are conflating malice aforethought with premeditation.
Typically not in law school.
Sometimes there are jurisprudential theory classes as electives that may address that among other issues.
Those types of things (regional culture resulting in those variances) is really interesting to me.
I am not.....
Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
Aforethought: previously in mind
AS OPPOSED TO
“imminently dangerous to another person and evincing a depraved mind, regardless of human life.....which is not the same thing as malice aforethought.
Let’s also not forget the felony murder doctrine (a common law doctrine)....which does not actually require ANY specific intent with regards to the taking of a life.
No, I was giving a general definition of murder which doesn't include motive.
You then stepped in with a specific state definition of murder degrees, starting first with Oklahoma and then shifting to Texas. And you failed to explain (give context) the unique way in which Texas approaches murder:
"While many states separate murder charges into first and second degree murder, Texas law makes a distinction between “capital murder” and “murder."
In order to be charged with murder, the defendant must have knowingly and willingly caused the death of another person. The biggest distinguishing factor between murder and manslaughter involves the intent of the perpetrator. If the defendant intended to cause serious bodily harm or death, or intended to commit a felony other than manslaughter that resulted in death, he or she can be charged with murder.
The distinction between capital murder and murder is made when the killing was committed in a way that can result in capital punishment in Texas. Some of the criteria for capital murder include killing a police officer or firefighter, having been paid to commit murder, murdering someone in prison, or killing more than one person.
With regard to capital murder, obviously, the punishment can result in the execution of the defendant. A defendant who is convicted of capital murder could also be given life in prison without the possibility of parole. A murder charge without capital implications, on the other hand, is a first-degree felony which can result in anywhere from 5 to 99 years in prison and a fine of no more than $10,000."
https://www.medlinfirm.com/blog/the-difference-between-manslaughter-and-murder-in-texas/
Yes it is. Premeditation is not.
Which then would include second degree murder.
Malice Aforethought:
The state of mind necessary for common law murder, including the intent to kill, the intent to commit serious bodily injury, the intent to commit a felony and the exhibition of a depraved indifference to human life.
Premeditation:
Consideration and/or planning that precedes an act.
Second degree murder is simply any killing committed with malice aforethought that is not specifically designated as first degree murder, including any killing committed while committing, or fleeing from the commission of a felony that is not on the list of felonies for which first degree murder would attach.
https://lawshelf.com/courseware/entry/murder
From the Texas statutes (Can’t believe I’m saying this, but thanks @soonerinlOUisiana ....
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.
I don't handle criminal cases. I believe you mentioned being an assistant DA or AG at some point, maybe a PD. Would this not be the "heated blood" associated with manslaughter from 1st semester criminal law?
And is it correct to say that the lady cop essentially was convicted of manslaughter?
In a nutshell:
Louisiana: Civil Code (derived from Napoleonic Code, derived from Justinian Code)
The other 49 states: Common Law of England
In another state what she was convicted of would be called voluntary manslaughter
1. The person you quoted and responded to was discussing THIS case.
2. I didn’t fail to explain anything. In fact, I spoke directly to Texas unique way of handling murder.
3. Texas ALSO makes a distinction between first and second degree murder offenses. I quoted it right there in the murder statute....subsection D...wholly separate and distinct from the manslaughter statute under Texas law.
If you’re gonna discuss what Texas law (any law for that matter) actually is and says, I would suggest reading and interpreting the actual law rather than googling up lawyers promotional websites and general reference law for laymen type sites.
Furthermore you still haven’t addressed that felony murder is a common law murder doctrine that also requires no malice aforethought.....when you assert that all murders require malice aforethought.
You know in your mind that all murders require malice aforethought from your common law perspective.
I know in my mind that not all murders require malice aforethought from a common law or statutory perspective.
At this point neither one of us gonna change the other’s mind. Continued “yes they do”/“no they don’t” responses are counter-productive and a waste of our time, so I’m choosing to step out and focus on the fact that we agree that motive is irrelevant to whatever definition of murder one chooses.
Indeed, I was being facetious. "Comparative law" is a popular topic for law reviews, and may even be offered as an "elective" (ie. not on the bar exam) at several law schools.
I’m an ADA in Oklahoma. Used to be Chief Legal Counsel at a state law enforcement agency in Oklahoma.
I don’t think it would be wise to attempt to define crimes in terms of general, colloquial terms from much of anything I was taught in law school. I would define them in terms of the statute, but if I did I would say....
1. Statutorily, she was convicted of second degree murder a felony....
2. It’s not accurate to say she was essentially convicted of manslaughter...because Texas defines manslaughter in a completely different statute....
3. It would be pretty close kind and comparable to the “heated blood” (voluntary manslaughter) concept associated with manslaughter in 1st semester crimlaw concepts, but not exactly.
And again, I gave the common law definition of murder. I never claimed to give the Texas definition of degrees of murder (which is what you are focused on) or even what Oklahoma has to say (which is what you first started with till that didn't work for you).
No you didn't and that is why it led you to misinterpret the statute.
You quoted the statute, highlighted what you thought made your point without any explanation of the larger context, and then repeated your incorrect claim.
I gave you those links to help you understand the context of Texas murder/homicide law, something you clearly were not grasping. It can be good to read from lawyers who actually practice in Texas if you are trying to understand how Texas operates.
Which was the point the whole time, before you had to step in and make a big to do about nothing. Thank you for at least agreeing with the original point.
No she wasn't convicted of second degree murder. There is no second degree murder in Texas.
She was convicted of murder, which is a first degree felony. She was facing anywhere from 5 to 99 years in prison. The jury accepted sudden passion as a factor, and reduced the murder to a second degree felony (2 to 20 years in prison) and gave her 10 years in prison.
My understanding is that they could have convicted her of manslaughter but chose not to. In the penalty phase though, they essentially gave her a sentence comparable to voluntary manslaughter in other states.
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Here we go again.
You wanna get pedantic, let’s get pedantic.
But only this one time....
“(c) Except as provided by Subsection (d), an offense under this section is a felony of the first degree.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.”
She was convicted of murder....which is a first degree felony EXCEPT AS PROVIDED FOR SUBSECTION D. Not all the offenses of “murder” are first degree felonies as you indicated. There is a specific exception where the offense of murder is NOT a first degree felony.
There is a specific exception expressed in the statute in which the offense of murder is NOT a first degree felony.....an exception which is an affirmative defense to murder, first degree felony.
The law in Texas clearly and expressly contemplates two felony degrees to the offense of murder....those in which the affirmative defense where “sudden passion arising from an adequate cause” exists and is proven (which is a second degree felony) and those in which it is not (a first degree felony).
She met her affirmative defense to a conviction for a first degree felony, the statute expressly says that the offense of murder when the burden of proof of the affirmative defense of sudden passion from an adequate cause is met “the offense IS a felony of the second degree”.
So she was convicted of murder, a second degree felony.....or colloquially “2nd degree murder”.
More succinctly...in Texas all murders are a felony in the first degree UNLESS a defendant meets their burden of proof for the specific affirmative defense in question. Those murders where that affirmative defense is established are a felony in the second degree. Some murders of which individuals are convicted are felonies of first degree (murder, first degree felony) and some are felonies of the second degree (murder, second degree felony). She was convicted of the offense of murder, second degree felony).
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All I know out of this conversation is that if JD was in private practice he'd be making a shit-ton of money.
A second degree felony doesn't make it a second degree murder. As one who loves to tout that you are a lawyer and apparently a prosecutor too, how in the world do you not know this?
For example, here in Florida where I practice, a second degree murder is a first degree felony!
There is no second degree murder is Texas. And no where in the statute you keep quoting does it say first or second degree murder. It says felony.
I did alright before I married a cop and had to come over from the dark side.
Forevermore, I have been very happy being a servant of the people over the past 20 + years.
Okie-dokes. Next question. How does the 10 year sentence, that is likely to be 5 years with parole, good behavior, etc. compare to a DUI/OWI that results in a fatal wreck? (assume no prior criminal record)
Texas doesn’t define their murders in terms of 1st degree murder/2nd degree murder. They define them in terms of “murder, a first degree felony” and “ murder, a second degree felony”.
In Oklahoma, our penal statutes do not even include the notion of degrees of felonies or misdemeanors because every single punitive offense statute includes a range of punishment and the few that don’t refer back to a single definition of misdemeanor or felony for all other crimes where a sentence is not specifically provided.
Thus......“colloquially”.
I don’t practice in Texas.
I don’t know.
I don’t have any idea of the statutory sentences or of the typical sentences in for those offenses.
I don’t even know if Texas has an 85% law for any degree of murder like Oklahoma. In Oklahoma, a DUI/DWI (our two terms) that results in a fatal wreck could conceivable be charged and successfully prosecuted as anywhere from 2nd Degree Murder (a murder which malice aforethought would not have to be proven, btw) to misdemeanor negligent homicide.
But just so I’m clear....I hold no truck....no problem with anyone that feels her sentence is too low. In fact, I tend to agree. At the same time, I certainly believe that it is something reasonable minds could certainly disagree with.
lol!
I know. There is no second degree murder in Texas. Thank you for finally agreeing!
Interesting.
Each state is different. Oklahoma does it one way, so does Texas (no second degree murder), so does Florida, etc.
This is why I gave the general common law definition of murder and wasn't attempting to conduct a semester long law course on different jurisdictional approaches to murder in the United States!
Having now looked at the Texas manslaughter statute you so helpfully linked to, I see this....
Sec. 19.04. MANSLAUGHTER. (a) A person commits an offense if he recklessly causes the death of an individual.
(b) An offense under this section is a felony of the second degree.
She was convicted of a crime with the same felony degree as the crime of manslaughter in Texas, so....yes it would be correct to say she was essentially convicted of manslaughter. That would be completely fair.
lol!
I know. There is no second degree murder in Texas. Thank you for finally agreeing!
You forgot the rest of what I said....”Thus....colloquially”.
Also, not all murders in Texas are first degree felonies as you said.
Love this edit JD you added once I showed you the obvious flaw you were making. Reads a lot like...
It’s kind of interesting that you effectively deleted the message where you actually did give whatever definition murder you did.
And you kind of did sign up for a lesson in different jurisdictional approaches when you did this.
The deal about tampering with cameras is just radical activist making a big deal out of following laws they do not like. The patrol car camera was turned off because of attorney client privilege. The attorney representing police officers was having a discussion with her in the car, that's protected by attorney client privilege and not subject to be recorded.
Love this edit JD you added once I showed you the obvious flaw you were making. Reads a lot like...
No it doesn’t. It doesn’t read at all like “murder, which is a first degree felony”. And that edit making the succinct statement that was completely and wholly tracked exactly tracks what I had said before. There was no substantive change.
In fact, it expressly establishes that in Texas, not all murders are first degree felonies.
Which is what you said.
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I didn't forget it. I just thought it was hilarious that you tried to fall back on informal or ordinary language when you have been debating legal and statutory definitions.
Murder and felony are different words with different legal meanings. Surprising you apparently didn't know that.
What are you talking about now Iol? I didn't delete it, it is still on this thread...
Do you fumble around like this in the courtroom? I sure hope not.
Because I obviously would pay the same level of attention or detail to work as I do as sitting on the couch as I do sitting around watching bad English reality tv, reading comic books, sipping whiskey and schooling you all at the same time.
Enjoy the one “internet point” you’ve scored today.
