At a party, the defendant and the victim agreed to play a game they called “spin the barrel.” The victim took an unloaded revolver, placed one bullet in the barrel, and spun the barrel. The victim then pointed the gun at the defendant’s head and pulled the trigger once. The gun did not fire. The defendant then took the gun, pointed it at the victim, spun the barrel, and pulled the trigger once. The gun fired, and the victim fell over dead.
A statute in the jurisdiction defines murder in the first degree as an intentional and premeditated killing, or one occurring during the commission of a common law felony. Murder in the second degree is defined as all other murder at common law. Manslaughter is defined as a killing in the heat of passion upon an adequate legal provocation, or a killing caused by gross negligence.
The most serious crime for which the defendant can properly be convicted is:
A. Murder in the first degree, because the killing was intentional and premeditated and, in any event, occurred during commission of the felony of assault with a deadly weapon.
B. Murder in the second degree, because the defendant’s act posed a great threat of serious bodily harm.
C. Manslaughter, because the defendant’s act was grossly negligent and reckless.
D. No crime, because the victim and the defendant voluntarily agreed to play a game and each assumed the risk of death.
{ 17 comments… read them below or add one }
C.
Answer B is correct. Second degree murder is typically defined as any murder that is not first degree murder, and the question indicates that second degree murder is defined in this jurisdiction as all other murder other than first-degree murder. (Note that this question gives statutory definitions of all the relevant homicide statutes, and make sure that the question is analyzed using these definitions.) A killing that results from an act done with a wanton and willful disregard of an unreasonable human risk is normally a second degree murder. This homicide is not first degree murder under the statute included in the question because it was not intentional or premeditated. It is not felony murder because felony murder is defined as a homicide occurring during the commission of a common law “inherently dangerous” felony, (i.e., Mayhem, Rape, Sodomy, Burglary, Arson, Kidnapping, Escape and Robbery).
Answer A is incorrect. The murder was not intentional or premeditated. It is not felony murder because assault with a deadly weapon is not a common law felony, and the statute requires that the homicide be one that occurs during the commission of a common law felony.
Answer C is incorrect. The statute defines manslaughter as a killing in the heat of passion upon adequate provocation-which is not the case here-or a killing caused by gross negligence. The conduct here is more than gross negligence, but involves a substantial or
very high, unreasonable risk to human life. Thus, the defendant can be convicted of the more serious crime of second degree murder, and the question asks for the most serious crime for which she can properly be convicted.
Answer D is incorrect. Whether or not the defendant committed second degree murder depends on her actions, not on whether she or the victim assumed any risk.
B–depraved heart. I am choosing this answer because he did intentionally fire the gun with a high disregard for the risk of serious injury or death. However, I am having a hard time understanding the actual difference between depraved heart murder (reckless disregard) and gross negligence.
Answer B.
B..
b
B, depraved heart murder
B
B.
A is incorrect because the intent was not to murder; Murder can’t be the underlining felony for a felony murder charge. I believe that “B” is the correct answer.
B
going with B
It’s B.
It’s B!
C
Answer B
B – depraved heart