Discussion Thread: Homicide
After being neighbors for three years, Sam and Mark quarreled over a ditch Sam was
constructing that diverted water onto Mark’s property, which Mark did not want and was
intensely angered about. One day, Mark was so angered by such that he threatened Sam to stop
building the ditch or he “would pay with his life.” The very next day, Mark went upon Sam’s
property and met Sam in Sam’s garage, and within minutes began further quarreling with Sam
about the ditch, and then sought and found an axe in Sam’s garage and struck Sam with the axe,
hacking into Sam’s leg with the axe and causing profuse severe bleeding. With his leg hacked
and severely bleeding, Sam tried to get to a phone to call for help, but the wound and blood loss
was so severe he died. There is no indication or evidence that Mark called authorities or an
ambulance or that he did anything to try to help Sam after hacking into his leg. Instead, after
hacking Sam’s leg with the axe, Mark fled in a panic, leaving Sam severely bleeding, unattended,
and without help, all while knowing or having cause to know that Sam would very likely die
without help. After being apprehended and charged with first-degree murder, Mark claims he had
no intent to kill Sam and that he only intended to hit him on the leg with the dull flat side of the
axe in an effort to scare Sam. As shown below, and depending on the state criminal laws of the
jurisdiction this incident occurred in, these facts suffice to charge and convict Mark of assault,
assault with a deadly weapon, battery, aggravated battery, attempted mayhem, mayhem,
involuntary and/or voluntary manslaughter, common law murder, second-degree murder, and
first-degree murder. A brief discussion of evidence probative of mens rea, a common motive,
flight and not calling for help as evincing guilt and mens rea follows, purpose, intent, and
premeditation follows, after which is a discussion of why he is guilty of these crimes.
First, there was a clear motive here: to stop Sam from constructing a ditch that diverted
water onto Mark’s property, which Mark did not like and did not want. While “[t]he prosecution
need not…prove motive[; n]evertheless, motive is relevant, and a strong motive provides
powerful evidence.” People v. Moore, 6 Cal. App. 5th 73, 85, 210 Cal. Rptr. 3d 769, 779 (Cal.
App. 3d Dist. 2016)(bracketing supplied). Here, the motive was clear and unmistakable, so much
that the day prior to the murder Mark threatened Sam that if he did not stop building the ditch he
“would pay with his life.” Additionally, there is a temporal proximity existing between the threat
and the actus reus (the striking and killing of Sam). “The temporal proximity of [Mark killing
Sam] to the making of the threats establishes a nexus between” the threat and the act carrying it
out (the act of killing Sam), which is also strong evidence of guilt. U.S. v. Newell, 309 F.3d 396,
402 (6th Cir. 2002)(bracketing supplied). Moreover, such prior threat in close temporal proximity
to the killing was evidence of malice aforethought, intent to kill, purpose, and premeditation.
See, e.g., Loyd v. State, 272 Ind. 404, 407, 398 N.E.2d 1260, 1264 (1980)(“Prior threats and
assaults are evidence of malice and purpose [and s]uch evidence may also establish
premeditation.”)(internal citations omitted)(bracketing supplied). As for Mark’s mens rea or
guilty mind, his flight from the crime scene is also evidence of guilt and of a guilty mind, guilty
consciousness, and guilty knowledge. See, e.g., Clagett v. Commonwealth, 252 Va. 79, 93, 472
S.E.2d 263, 271 (Va. June 7, 1996)(“[f]light following the commission of a crime is evidence of
guilt.”); Speller v. Commonwealth, 69 Va. App. 378, 388, 819 S.E.2d 848, 853 (2018)(same);
State v. Pagan, 357 S.C. 132, 140, 591 S.E.2d 646, 650-651 (S.C. Ct. App. January 12, 2004)
(“Evidence of flight has been held to constitute evidence of defendant's guilty knowledge and
intent. Flight, when unexplained, is admissible as indicating consciousness of guilt, for it is not
to be supposed that one who is innocent and conscious of that fact would flee.”)(internal citations
omitted).
Additionally, there is strong evidence the killing was not accidental, but intentional,
premeditated, purposeful, and with malice aforethought:
(a) Mark’s threat the day before that if Sam did not stop building the ditch he
“would pay with his life,” and such is evidence of intent, malice aforethought,
premeditation, and purpose. Newell, Loyd, and Pagan, supra;
(b) Mark did not call authorities or an ambulance to try to help Sam after
“accidentally” hacking him in his leg and seeing him profusely bleeding, but
instead fled, and a person inflicting an injury that is actually accidental would call
for help and try to help the injured person, not flee the scene. See, e.g., People v.
Cruz, 2013 IL App (1st) 111796-U, P52, 2013 Ill. App. Unpub. LEXIS 1307, *33-
34 (Ill. App. Ct. 1st Dist. June 17, 2013)(defendant’s claimed “accidental” killing
of wife was belied by the fact that he “did not call for help” and fled the scene
after allegedly stabbing her); and
(c) the use of a deadly weapon (an axe) to assault Sam, evinces an intent to kill,
and swinging an axe at someone in a manner known to pose an extreme risk or
certainty of causing death also evinces an intent to kill (swinging an axe to hit
someone with the dull, flat side of the axe, while knowing that unexpected
movements or events can occur that result in the sharp blade side hitting the
person instead, and thereby causing a fatal wound, reflect a knowing and
purposeful act to cause death and to engage in an act with a great certainty of
causing death). See, e.g., State v. Ostrander, 18 Iowa 435, 456-457, 1865 Iowa
Sup. LEXIS 48, *29 (Iowa June 1, 1865)(“That an ax is a deadly weapon, cannot
be denied…[and] the law will presume that a person who uses an ax as a weapon
of attack upon another is animated by a criminal intent.”)(internal citations
omitted); Dickinson v. Shinn, 2 F.4th 851, 866 (9th Cir. 2021)(defendant
brandishing an ax and telling the victim that he was "going to kill [him]" before
the attack was evidence of an intent to kill).
We now turn to crimes Mark can be convicted of, but a caveat is in order: all of the following
crimes Mark could be convicted of can vary from jurisdiction to jurisdiction, and he may not be
guilty of all of such crimes in all jurisdictions, or the particular laws of some jurisdictions could
render him not-guilty of such and even guilty of other crimes. The following thus proceeds on
general law as discussed in our textbook.
First, Mark is guilty of assault. “[W]hen a person puts another in fear or apprehension of
an imminent battery, an assault has been committed.” Daniel E. Hall, Criminal Law and
Procedure, §4-3 (7th ed. 2015). Here, threatening Sam’s life the day before could have or did put
Sam in fear or apprehension of an imminent battery, thus constituting one assault, and then the
next day in the garage when Mark picked up and wielded the axe in a threatening manner at the
time of or immediately prior to striking Sam with such, that also would have or did put Sam in
fear or apprehension of an imminent battery. There are thus two assaults that occurred here, one
at the time of the threat on the day before the killing, and one the next day just before the killing
when the axe was wielded in a threatening manner just before striking Sam with such.
Mark is also guilty of battery and aggravated battery. “To prove battery, it must be shown
that a contact was made.” Ibid, Hall, at §4-3. There is no question that Mark struck and contacted
Sam with the axe, and that he thus committed a battery upon Sam. However, because “a battery
may be aggravated if the harm rises to the level of serious bodily injury,” Id, Hall, at §4-3, and
Sam incurred a serious bodily injury from being struck with the axe blade, such is evidence Mark
committed an aggravated battery and he could thus be convicted of aggravated battery.
Mark is also guilty of assault with a deadly weapon. An axe is a deadly weapon and
striking someone with an axe constitutes an assault with a deadly weapon. See, e.g., Ostrander,
supra, 18 Iowa at 456-457.
Mark is also guilty of mayhem or attempted mayhem, a crime which involves
“intentionally dismembering or disfiguring a person.” Hall, §4-4. Striking someone in the leg
with the sharp blade of an axe can easily be found to be an attempted dismembering or attempted
disfigurement. We are not told whether the axe severed Sam’s leg, and if it did such would
constitute a completed dismemberment and disfigurement, and thus the completed crime of
mayhem. Id, Hall, §4-4.
Mark is also guilty of manslaughter, voluntarily or involuntarily. “At common law,
murder was an unlawful killing with malice aforethought. Manslaughter was an unlawful killing
without malice aforethought.” Hall, §4-2c. If the trier of fact believes Mark’s assertion that he
swung the axe intending only to scare Sam and to hit him with the dull flat side of the axe, and
not to kill him and without malice, then the killing would be an involuntary manslaughter.
However, because it was Mark’s stated intent to hit and assault Sam with the dull flat side of the
axe, such act would be an assault and battery, and the incidental killing of Sam while committing
such assault and battery would be a voluntary manslaughter if Mark’s assertions are believed. If
the jurisdiction regards assault and battery as a misdemeanor, it would be a misdemeanor
manslaughter. Hall, §4-2a.
Because many of these lesser crimes have elements that merge into or are subsumed by
common law murder and first-degree and second-degree murder, we shall now show Mark’s
guilt of first-degree and second degree murder. “Murder, at common law, was defined as (1) the
unlawful killing of a (2) human being with (3) malice aforethought.” Hall, §4-2a. Here, the
evidence suffices to convict Mark of common law murder: Sam was a fellow human and a
neighbor, and Mark had no lawful authority to kill Sam, and there is evidence (his threat to kill
the day before and his use of a deadly weapon in assaulting Sam) he had malice aforethought,
premeditation, purpose, mens rea, and an intent to kill as mentioned above. Additionally, he is
guilty of first-degree murder because the evidence shows premeditation, purpose, mens rea, and
an intent to kill, coupled with a threat to kill and the use of a deadly weapon to attack the victim.
This all suffices to prove first degree murder, either directly or circumstantially. Id, Hall, §4-2b.
If Mark’s assertion that he did not intend to kill Sam is believed, the evidence would thus suffice
to convict him of second-degree murder if such assertion is believed. Id, Hall, §4-2b.
My answer to this question would not be different according to a Christian worldview.
Specifically, I have a Christian worldview and my above answer is consistent with and reflective
of such. As evidence of such answer being consistent with a Christian worldview, in the Bible
God delineates commands regarding unintentional and intentional homicide, and orders the
establishment of three cities of refuge for people to flee to when they have unintentionally killed
a person, without malice aforethought, so that they may avoid being killed by the avenger of
blood in retribution for the unintentional homicide, but prescribes execution as a penalty for
those who intentionally kill others. Specifically,
[t]his is the rule concerning anyone who kills a person and flees [to one of the
cities of refuge] for safety—anyone who kills a neighbor unintentionally, without
malice aforethought. For instance, a man may go into the forest with his neighbor
to cut wood, and as he swings his ax to fell a tree, the head may fly off and hit his
neighbor and kill him. That man may flee to one of these cities and save his life.
Otherwise, the avenger of blood might pursue him in a rage, overtake him if the
distance is too great, and kill him even though he is not deserving of death, since
he did it to his neighbor without malice aforethought. This is why I command you
to set aside for yourselves three cities. If the Lord your God enlarges your
territory, as he promised on oath to your ancestors, …then you are to set aside
three more cities. Do this so that innocent blood will not be shed in your land …
and so that you will not be guilty of bloodshed. But if out of hate someone lies in
wait, assaults and kills a neighbor, and then flees to one of these cities, the killer
shall be sent for by the town elders, be brought back from the city, and be handed
over to the avenger of blood to die. Show no pity. You must purge from [your
land] the guilt of shedding innocent blood, so that it may go well with you.
Deuteronomy 19:4-13 (New International Version)(ellipses supplied). In this passage, God
clearly draws a distinction between the person who commits homicide unintentionally and the
person who does so intentionally, with malice aforethought. God specifies that the person who
does so intentionally must be sought, arrested, and punished: “the killer shall be sent for by the
town elders, be brought back from the city, and be handed over to the avenger of blood to die.
Show no pity.” Deuteronomy 19:12-13. Here, the evidence suffices to show Mark intentionally
murdered Sam under God’s law and that Mark should be convicted, punished, and executed for
intentional murder under God’s law.
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