Section 20 Mistake as to a Justification 631. Chapter 4. Offenses Against the Person Article 1. Homicide Section Murder in the First Degree

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1 Section 20 Mistake as to a Justification 631 THE LAW Wyoming Statutes (1982) Chapter 4. Offenses Against the Person Article 1. Homicide Section Murder in the First Degree (a) Whoever purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate any rape, sexual assault, arson, robbery or burglary, or by administering poison or causing the same to be done, kills any human being, or whoever purposely and with premeditated malice kills any peace officer, correction employee or fireman acting in the line of duty, is guilty of murder in the first degree. (b) A person convicted of murder in the first degree shall be punished by death or life imprisonment according to the law. Section Presentence Hearing for Murder in the First Degree; Mitigating and Aggravating Circumstances (a) Upon conviction of a person for murder in the first degree the judge shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment. The hearing shall be conducted before the judge alone if: (i) The defendant was convicted by a judge sitting without a jury; (ii) The defendant has pled guilty; or (iii) The defendant waives a jury with respect to the sentence. (b) In all other cases the sentencing hearing shall be conducted before the jury which determined the defendant s guilt or, if the judge for good cause shown discharges the jury, with a new jury impaneled for that purpose. (c) The judge or jury shall hear evidence as to any matter that the court deems relevant to a determination of the sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (h) and (j) of this section. Any evidence which the court deems to have probative value may be received regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements, and provided further that only such evidence in aggravation as the state has made known to the defendant or his counsel prior to his trial shall be admissible. (d) Upon conclusion of the evidence and arguments the judge shall give the jury appropriate instructions, including instructions as to any aggravating or mitigating circumstances, as defined in subsections (h) and (j) of this section, or

2 632 Part VI.a Justification Defenses proceed as provided by paragraph (ii) of this subsection: (i) After hearing all the evidence, the jury shall deliberate and render a recommendation of sentence to the judge, based upon the following: (A) Whether one (1) or more sufficient aggravating circumstances exist as set forth in subsection (h) of this section; (B) Whether sufficient mitigating circumstances exist as set forth in subsection (j) of this section which outweigh the aggravation circumstances found to exist; and (C) Based upon these considerations, whether the defendant should be sentenced to death or life imprisonment. (ii) In nonjury cases, the judge shall determine if any aggravating or mitigating circumstances exist and impose sentence within the limits prescribed by law, based upon the considerations enumerated in (A), (B), and (C) of this subsection. (e) The death penalty shall not be imposed unless at least one (1) of the aggravating circumstances set forth in subsection (h) of this section is found. The jury, if its verdict is a recommendation of death, shall designate in writing signed by the foreman of the jury the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In nonjury cases the judge shall make such a designation. If the jury cannot, within a reasonable time, agree on the punishment to be imposed, the judge shall impose a life sentence. (f) Unless the jury trying the case recommends the death sentence in its verdict, the judge shall not sentence the defendant to death but shall sentence the defendant to life imprisonment as provided by law. Where a recommendation of death is made, the court shall sentence the defendant to death. (g) If the trial court is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment. (h) Aggravating circumstances are limited to the following: (i) The murder was committed by a person under sentence of imprisonment; (ii) The defendant was previously convicted of another murder in the first degree or a felony involving the use or threat of violence to the person; (iii) The defendant knowingly created a great risk of death to two (2) or more persons; (iv) The murder was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, robbery, rape, sexual assault, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb; (v) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody; (vi) The murder was committed for pecuniary gain; (vii) The murder was especially heinous, atrocious, or cruel; (viii) The murder of a judicial officer, former judicial officer, district attorney, former district attorney, or former county and prosecuting attorney, during or because of the exercise of his official duty.

3 Section 20 Mistake as to a Justification 633 (j) Mitigating circumstances shall be the following: (i) The defendant has no significant history of prior criminal activity; (ii) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance; (iii) The victim was a participant in the defendant s conduct or consented to the act; (iv) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor; (v) The defendant acted under extreme duress or under the substantial domination of another person; (vi) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; (vii) The age of the defendant at the time of the crime. Section Murder in the Second Degree Whoever purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and shall be imprisoned in the penitentiary for any term not less then twenty (20) years, or during life. Section Manslaughter Whoever unlawfully kills any human being without malice, expressed or implied, either voluntarily, upon the sudden heat of passion, or involuntarily, but in commission of some unlawful act, except as provided in W.S [Homicide by vehicle; aggravated homicide by vehicle; penalties], or by any culpable neglect or criminal carelessness, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty (20) years. Section Conspiracy Chapter 1. General Provisions Article 2. Conspiracy (a) A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons to commit a crime and he or another person does an overt act to effect the object of the agreement. (b) A person is not liable under this section if after conspiring he withdraws from the conspiracy under circumstances manifesting voluntary and complete renunciation of his criminal intention. (c) A conspiracy may be prosecuted in the county where the agreement was entered into, or in any county where any act evidencing the conspiracy or furthering the purpose took place.

4 634 Part VI.a Justification Defenses Section Penalty The penalty for attempt, solicitation, and conspiracy is the same as the penalty for the most serious offense which is attempted, solicited or is an object of the conspiracy except that an attempt, solicitation or conspiracy to commit a capital crime is not punishable by the death penalty if the capital crime is not committed. Loy v. State 26 Wy. 381, 185 P. 796 (1919) The defendant was convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for life. The defendant was a white guest of a hotel in Laramie who shot an African-American porter during a brief altercation. The court approved the following jury instruction given to the jury regarding premeditation: The word premeditated, as used in the information and in the statute, means to think beforehand. It implies an interval, however brief, between the formation of the intent or design and the commission of the act. To find the defendant guilty of murder in the first degree, you must find from the evidence beyond a reasonable doubt that he killed the deceased purposely and with premeditated malice as herein defined. But it is not necessary that such premeditation should have existed in the mind of the defendant for any particular length of time before the killing; it is sufficient if he has deliberately formed in his mind a determination to kill and has thought over it before the shot was fired.... It is the fixed, deliberate, premeditated intention to kill which characterizes the crime of murder in the first degree, and the premeditated malice mentioned in the information need only be such deliberation and thought as enable a person to appreciate and understand at the time the act is committed the nature of the act and its probable results. The defendant claimed that the porter approached him in a threatening way while touching his coat pocket. In response, the defendant pulled out a gun and shot the victim, as he claimed, in self-defense. The court affirmed his conviction and held that self-defense was permitted as a justification for murder when the Defendant...not only believe[s] he is in danger, but the circumstances must be such as to afford reasonable grounds for the belief. In this case, the circumstances did not afford such reasonable grounds for his belief. Ross v. State 57 P. 924 (Wyo. 1899) The defendant was charged with first-degree murder, but convicted of second-degree murder and sentenced to life imprisonment for the shooting death of a competitor saloon owner. While the facts were in dispute, it was clear that the defendant had attempted to provoke the decedent with insults and disparaging remarks, and that his actions resulted in either a gun battle between

5 Section 20 Mistake as to a Justification 635 the men or the defendant s unprovoked shooting of the decedent. The state s evidence showed that the decedent was unarmed. The defendant appealed his conviction and charged that the trial court erred by permitting a jury instruction as to implied malice. The supreme court affirmed the lower court s decision and held that the instruction that [t]hough there was no premeditation, a charge that malice is implied from any deliberate and cool act done against another, however sudden, which shows an abandoned and malignant heart, and where one person assaults another with a deadly weapon in such a manner as is likely to cause death, although he had no previous malice or ill will against the party assaulted, yet he is presumed, in law, to have such malice at the moment of the assault, and, if death result therefrom, it is murder, was not erroneous, as authorizing a conviction of murder in the first degree. State v. Helton 73 Wyo. 92, 115, 276 P.2d 434, 442 (1954) In reversing a conviction for murder and entering a judgement for voluntary manslaughter for the defendant s shooting of her husband, the court explained the offense of voluntary manslaughter in this way: Our laws recognize an intermediate crime lying someplace between the excusable, justifiable or privileged killing of a human being, and the unlawful taking of a life with malice [i.e., murder]. [W]e find in our law, that the intentional (i.e., voluntary) doing of the wrongful act, upon a sudden heat of passion, although completely free of express, implied, constructive or legal malice, but committed without legal excuse, privilege or justification, is a punishable crime which we call voluntary manslaughter. This simply recognizes that there may be circumstances surrounding a killing which...while not producing that degree of mental disturbance or aberration of the mind which is necessary in law to excuse the homicide, still leaves the mind devoid of that wicked, evil and unlawful purpose, or of that wilful disregard of the rights of others which is implied in the term malice. Such circumstances mitigate or extenuate the act and make the homicide a crime of lesser degree. The sudden heat of passion contemplated by our voluntary manslaughter statute is descriptive of just such a state of mind, and it may occur from any emotional excitement of such intensity that it temporarily obscures reason, or leaves the mind bereft of reason. Foley v. State 72 P. 627 (Wyo. 1903) The defendant was convicted of second degree murder and appealed on an issue of error by the trial court for admitting hearsay testimony. Within its opinion, the court defined a defense for mistaken self-defense: [h]omicide is justifiable on the ground of self-defense where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe, that he is in imminent danger of death or great bodily harm, and that his only means of

6 636 Part VI.a Justification Defenses escape from such danger will be by taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger. Harries v. State 650 P.2d 273 (Wyo. 1982) The defendant was convicted of use of a weapon to commit assault and battery on another. He had been involved in a bar fight during which he was struck by an unknown assailant. He retaliated with a shot to the leg of a third party. He then went for a weapon in his friend s truck, pulled out a gun, and fired it when a third party tried to take the weapon from him. He claimed a reasonable belief that actions were justified as self-defense and defense of others based on the third party s movements toward him during the scuffle. The court dismissed his defense-of-others argument because it had not been raised at trial. It affirmed his conviction despite his self-defense claim because the defendant s belief was not one that an objectively reasonable person would hold. The court affirmed the trial court s jury instruction that the elements of self-defense required that the defendant have reasonable grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so he may use all force and means which he believes to be necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent. (Quoting Instruction No. 10; Wyoming Pattern Jury Instructions, Criminal, ) The court further held that [t]o justify acting in self-defense, it is not necessary that the danger was real, or that the danger was impending and immediate, so long as the defendant had reasonable cause to believe and did believe these facts. If these two requirements are met, acting in self-defense was justified even though there was no intention on the part of the other person to do him harm, nor any impending and immediate danger, nor the actual necessity for acting in selfdefense. (Quoting Instruction No. 11; Wyoming Pattern Jury Instructions Criminal, ) Delaney v. State 14 Wyo. 1, 81 P. 792 (1905) Defendant was found guilty of assault with intent to murder one Stark. Because he was in his own home at the time of the assault, he objected to the following jury instruction, on the ground that it violated his right not to have to retreat from his own house before using deadly force: If you find from the evidence that the defendant could have retired to a place of safety before Stark reached his gun, then it was his duty to have done so, and he was not justified in shooting Stark because he may have believed that Stark was going after his gun. To justify the use of a deadly weapon by the defendant when an assault has been made upon him, the circumstances must

7 Section 20 Mistake as to a Justification 637 appear to be such that there is no other reasonable means of escape from death or great bodily harm. The court rejects the claim and affirms the conviction, saying: Having been the aggressor, the defendant placed himself in the attitude of one who assaults another on the highway, and upon whom the law imposes the duty of withdrawing in good faith from, and not for the purpose of renewing, the assault, before he can justify shooting his adversary on the ground of self-defense. Model Penal Code (Official Draft 1962) Section Mistake of Law as to Unlawfulness of Force or Legality of Arrest; Reckless or Negligent Use of Otherwise Justifiable Force; Reckless or Negligent Injury or Risk of Injury to Innocent Persons (1) The justification afforded by Sections 3.04 to 3.07, inclusive, is unavailable when: (a) the actor s belief in the unlawfulness of the force or conduct against which he employs protective force or his belief in the lawfulness of an arrest which he endeavors to effect by force is erroneous; and (b) his error is due to ignorance or mistake as to the provisions of the Code, any other provision of the criminal law or the law governing the legality of an arrest or search. (2) When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under Sections 3.03 to 3.08 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justiciability of his use of force, the justification afforded by those Sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability. (3) When the actor is justified under Sections 3.03 to 3.08 in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those Sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons. Section Military Orders It is an affirmative defense that the actor, in engaging in the conduct charged to constitute an offense, does no more than execute an order of his superior in the armed services which he does not know to be unlawful.

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