Comments on: MBE Question of the Day #46

By: Maryann Herman

Maryann Herman — Sun, 14 Feb 2010 21:46:09 +0000

Answer A is correct. One basis for malice, the mental state for murder, is the wanton and willful disregard of an unreasonable human risk. The jury could have found on the evidence that aiming a gun at a target on a tree with a line of fire which would send bullets into a playground occupied by several small children was the conduct which would constitute depraved-heart malice.

Answer B is incorrect. The evidence could not support voluntary manslaughter because that crime is committed only where the killing is intentional. Moreover, there is ample evidence to support a conviction for murder on the basis of the depraved-heart doctrine.

Answer C is incorrect. The jury could find that the level of depravity in this case goes beyond the willful-and-wanton conduct standard which forms the mens rea for involuntary manslaughter. One basis to establish malice, the mental state for murder, is the wanton and willful disregard of an unreasonable human risk. The jury could have found on the evidence that aiming a gun at a target on a tree with a line of fire which would send bullets into a playground occupied by several small children was the conduct which would constitute malice.

Answer D is incorrect. The jury, on the basis of the facts presented, could find conduct which greatly exceeds ordinary negligence. Moreover, negligence could support a criminal conviction but only of a lesser degree of a statutorily created homicide crime.

By: Donna

Donna — Sun, 14 Feb 2010 17:54:51 +0000

The answer is A.
He should have known that firng the gun so close to school children would be dangerous. It amounts to willful and wanton, reckless disregard for human lfe. Murder.

By: Wrelyea

Wrelyea — Sun, 14 Feb 2010 06:13:37 +0000

Answer A, because, from the facts presented, Phillips observed an area beyond a clearing which contained several newly constructed houses, between the houses was a small playground, where several children were playing. The next word is the crux….”Nevertheless” meaning he knew, that the children were there, and knowingly engaged in conduct that presented an extremely high risk of death or serious bodily injury to any of the children. Therefore, under the general rule of Wanton and Willful Misconduct he has the malice to be found guilty of murder.

By: Ken

Ken — Sun, 14 Feb 2010 02:41:48 +0000

C: the subtantive evidence (actus reus and men rea) cannot support a murder conviction — for second degree murder, you at least need intent to kill or to do grievous body injury, and here he clearly did not have the i9ntent to kill. The evidence on the other hand could support involuntary manslaughter based on recklessness willful, wanton conduct.

By: D

Sun, 14 Feb 2010 01:37:42 +0000

A; because he is an A- hole. A clear case of reckless indifference to an unjustifiable high risk to the lives of the children in the playground.

By: mimi

mimi — Sat, 13 Feb 2010 19:43:07 +0000

answer A. Phillips had malice, wanton and willful disregard for human life. his shooting at a playground would constitute a malicious act. his conviction of murder constitutes an extremely high risk to human life and demonstrates a complete lack of regard for human life, other examples . Acts, such as Russian Roulette (pointing a gun at a person during a game), shooting a gun into an occupied room, and shooting a gun into an occupied vehicle constitute conduct that fits the definition of an extremely high risk to human life.

By: Cheese

Cheese — Sat, 13 Feb 2010 18:11:32 +0000

A – THOMCA, dont overthink this stuff. Go with your gut and move on.

By: BV

BV — Sat, 13 Feb 2010 17:35:19 +0000

A is the answer. I’m with Mona on this one: depraved heart murder.

By: Mona

Mona — Sat, 13 Feb 2010 15:42:51 +0000

The answer is A because this is a depraved heart muder. The man went ahead in conscious disregard of the risk. He saw the children playing but still nailed a paper and started shooting at a place where several children are playing. This is analogous to firing in a crowded room. The defendant himself knew the risk and therefore it is depraved heart murder.

B is wrong because there is no provocation

C is wrong because involntray manslaughter included criminal negligence and msdemeanor manslaugher. Criminal negligence is when the Defendant should have known the risk, here the defendant knew. This is more than criminal negligence and therefore C is wrong.

D is wrong because if it is more than criminal negligence, it is definately more than mere negligence.

By: ThomCA

ThomCA — Sat, 13 Feb 2010 15:17:01 +0000

This is the type of question that drives people nuts. It all comes down to the mental state of def. Was he recklessly indifferent to the cost to human life (A), criminally negligent (C), or merely negligent (D). The one answer that is clearly off the table is B b/c def did not act with passion.

I’ll pick C for no other reason that than the language of the facts seem to make A the preferred choice and I think of the examiners as tricky bastards. A would be the clear choice if the facts sai9d that def noticed children present. This would perhaps make der’d behavior reckelss, but the facts fail to tell us explicity that def saw children. Def only noticed a playground. So I don’t think def had a depraved heart. Def’s actions seem to be more that a tortious breach of duty so D is out in my mind.Def’s actions posed a substantial risk to life given he shot a weapon in a residential area towards a playground and home.

Perhaps my logic is thin and I feel like I’m seeing distinctions that aren’t there. Nevertheless, final answer = C