This chapter discusses common law and modern statutory definitions of criminal homicide offenses in Tennessee. At common law, murder required an unlawful killing with malice aforethought, while manslaughter involved an unlawful killing without malice. Modern statutes in Tennessee classify homicide into degrees of murder, voluntary/involuntary manslaughter, vehicular homicide, reckless homicide, and criminally negligent homicide, with varying penalties. The chapter also examines legal issues regarding suicide, abortion, removal of life support, and acts resulting in fetal death.

1. Scheb and Scheb, Criminal Law and Procedure 7 th edition Chapter 6: Homicidal Offenses

2. Common Law Homicide Offenses Murder was the unlawful killing of one person by another with malice aforethought. The required malice could be either express or implied. There were no degrees of murder. Manslaughter was the unlawful killing of one human being by another when no malice was involved.

3. Voluntary and Involuntary Manslaughter There were two categories of manslaughter: voluntary and involuntary. Voluntary manslaughter consisted of an intentional, unlawful killing that occurred in the heat of passion as a result of some adequate provocation. Involuntary manslaughter was the unintentional killing of another by the accused’s gross or wanton negligence.

4. Felony Murder The common law developed a doctrine that where an accused was engaged in the commission of a felony and a homicide occurred, the felonious act was regarded as a substitute for the proof of malice aforethought required to find the defendant guilty of murder. Thus, it became felony murder when an accused unintentionally killed a human being while committing, or attempting to commit, such common-law felonies as burglary, arson, rape, or robbery.

5. Levels of Criminal Homicide in Tennessee First degree murder Second degree murder Voluntary manslaughter Vehicular homicide Reckless homicide Criminally negligent homicide See T.C.A. § 39-13-201 et seq.

6. First-degree murder “ the premeditated and intentional killing of another” “ the killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect or aircraft piracy” “ the killing of another committed as the result of the unlawful throwing, placing or discharging of a destructive device or bomb” Capital crime Death penalty; life imprisonment

7. State v. Bryan (TN Crim App, 1999) “ Premeditation requires that the act be committed after the exercise of reflection and judgment, but the purpose to kill is not required to have pre-existed in the mind of the defendant for any definite period of time. … Whether a defendant has acted with premeditation is a question for the jury to determine, and it may be inferred from the manner and circumstances of the killing. … The use of a deadly weapon upon an unarmed victim, the declarations of a defendant of his intent to kill, the infliction of multiple wounds, the defendant’s prior relationship with the victim, and the fact that the killing was particularly cruel are all factors which the jury may consider in determining whether the murder was premeditated.”

8. STATE v. PIKE 978 S.W.2d 904 (Tenn. 1998) This case stems from a horrific murder that took place on the campus of the University of Tennessee, Knoxville, in January 1995. Christa Gail Pike, a student at the Job Corps Center in Knoxville, was convicted of the first degree murder and sentenced to death. She was also convicted of conspiracy to commit first degree murder and was sentenced to twenty-five years in prison. The Court of Criminal Appeals affirmed the conviction and sentence, as did the TN Supreme Court. That opinion is available on Blackboard.

9. Second-degree Murder “ a knowing killing of another” “ the killing of another which results from the unlawful distribution of any Schedule I or Schedule II drug when such drug is the proximate cause of the death of the user” Class A felony 15-60 years in prison

10. Voluntary Manslaughter “ the intentional or knowing killing of another in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner” Class C felony 3-15 years in prison

11. Vehicular Homicide “ the reckless killing of another by the operation of an automobile, airplane, motorboat or other motor vehicle: (1) As the proximate result of conduct creating a substantial risk of death or serious bodily injury to a person; or (2) As the proximate result of the driver’s intoxication….” Class C felony (3-15 years), unless it is the proximate result of driver intoxication, in which case it is a Class B felony (8-30 years)

12. Reckless Homicide the “reckless killing of another” Class D felony 2-12 years in prison

13. Criminally Negligent Homicide “ criminally negligent conduct which results in death” Class E felony 1-6 years in prison

14. Prosecutorial Burdens in Homicide Cases The prosecution bears several burdens peculiar to homicide cases The victim of the crime must have been alive The defendant’s actions must be the cause of the victim’s death In some jurisdictions, death of the victim must occur within a stated period of time

15. Justifiable and Excusable Homicide Modern criminal codes generally provide that it is justifiable homicide for one to take another’s life by authority of the law. It is considered excusable homicide if death results from the inadvertent taking of another’s life when the actor is not guilty of criminal negligence.

16. Removal of Life-Support Systems Another area of contemporary concern has resulted from technological advances in medicine that has enabled physicians to use sophisticated life-support systems to prolong life for indefinite periods. In a landmark case in 1976, the New Jersey Supreme Court allowed parents to remove the life-support system sustaining the life of their daughter, who lay in a comatose state with no reasonable medical probability of regaining a sapient existence. The court ruled that withdrawal of such life-support systems, under the circumstances, would not constitute a criminal homicide. In re Quinlan, 355 A.2d 647 (N.J. 1976).

17. Suicide at Common Law Suicide was a serious offense against the Crown, inasmuch as the monarch had been deprived of one of his or her subjects. It was also regarded as a serious moral offense by ecclesiastical authorities and by the English people. Suicide was punished by forfeiture of the decedent’s personal property to the Crown and denial of a proper burial.

18. Modern Suicide Laws In the United States, the thrust of the criminal law has been to make it an offense to cause or aid another person to commit suicide, with many states making assisted suicide a crime. New York law provides that a person who “intentionally causes or aids another person to commit suicide” is guilty of manslaughter in the second degree. McKinney’s N.Y. Penal Law § 125.15.

19. Oregon’s Death with Dignity Act In 1994 Oregon voters adopted a Death with Dignity Act that allows terminally ill adult patients to obtain a physician’s prescription for a lethal dose of medication. Two doctors must determine that the patient has less than six months to live and is mentally competent. The patient must request a lethal dose of medicine both orally and in writing and must wait at least fifteen days to obtain it.

20. Washington v. Glucksberg (1997) The U.S. Supreme Court upheld a Washington state law criminalizing doctor-assisted suicide. The Court pointed out that statutes banning assisted suicide are long-standing expressions of the states’ commitment to the protection and preservation of human life. The Court rejected any parallel between a person’s right to terminate medical treatment and the “right” to have assistance in committing suicide.

21. Tennessee’s Assisted Suicide Law Although suicide is not a criminal offense, it is Class D felony to assist someone in the commission of suicide, as delineated in TCA §39-13-216.

22. Abortion at Common Law Under English common law, abortion was a misdemeanor, but only after “quickening.” As the Supreme Court recognized in Roe v. Wade (1973), “It is undisputed that at common law, abortion performed before ‘quickening’ … was not an indictable offense.” This was based on the belief that the soul entered the fetus at the time of quickening, thus making it alive.

23. Roe v. Wade (1973) The U.S. Supreme Court struck down a Texas law that made it a felony to procure or attempt an abortion except one “procured or attempted by medical advice for the purpose of saving the life of the mother.” The Court held that the law impermissibly interfered with a woman’s constitutional right of privacy, which the Court determined to be “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Moreover, the Court held that the fetus is not a person and therefore has no constitutional right to life. At the same time the Court recognized the state’s interest in protecting the unborn, an interest that becomes compelling at the point of fetal viability.

24. TN Abortion Laws Tennessee abortion law is consistent with Roe v. Wade (1973) and subsequent decisions of the U.S. Supreme Court, such as Planned Parenthood v. Casey (1992). Women seeking abortions must give “informed consent” before the procedure can be administered. Physicians are required to warn patients of the dangers of abortion and there is a two-day waiting period after this warning is given before the abortion can be provided. T.C.A. § 39-15-202.

25. TN Abortion Laws (cont.) After the first trimester of pregnancy, an abortion must be performed in a hospital. T.C.A. § 39-15-201(c)(2). Abortion is outlawed after viability of the fetus except as necessary to preserve the life or health of the mother, as certified in writing by the attending physician. T.C.A. § 39-15-201(c)(3). Physicians and hospitals have the right to refuse to perform abortions. T.C.A. § 39-15-204.

26. Acts that Result in Death to a Fetus Nearly all states have laws criminalizing intentional acts other than medical abortion that result in death to a fetus. Some statutes explicitly limit the offense to instances where the fetus is “viable.” See, e.g., Tenn. Code. Ann. § 39-13-214. Other states, such as Michigan, prohibit the killing of an “unborn quick child.” See, e.g., Mich. Stat. Ann. § 28.554. The Michigan Supreme Court has said that this law applies only those fetuses that are viable. Larkin v. Cahalan , 208 N.W.2d 176 (Mich. 1973). Other state courts have generally followed the same approach in defining the term “unborn quick child.”