The facts of this case are essentially uncontested, and the evidence presented at trial tended to show the following series of events. On 22 December 1985, defendant John Forrest admitted his critically ill father, Clyde Forrest, Sr., to Moore Memorial Hospital. Defendant’s father, who had previously been hospitalized, was suffering from numerous serious ailments, including severe heart disease, hypertension, a thoracic aneurysm, numerous pulmonary emboli, and a peptic ulcer. By the morning of 23 December 1985, his medical condition was determined to be untreatable and terminal. Accordingly, he was classified as “No Code,” meaning that no extraordinary measures would be used to save his life, and he was moved to a more comfortable room.

On 24 December 1985, defendant went to the hospital to visit his ailing father. While one of the nurse’s assistants was tending to his father, defendant told her, “There is no need in doing that. He’s dying.” She responded, “Well, I think he’s better.” The nurse’s assistant noticed that defendant was sniffing as though crying and that he kept his hand in his pocket during their conversation. She subsequently went to get the nurse.

When the nurse’s assistant returned with the nurse, defendant once again stated his belief that his father was dying. The nurse tried to comfort defendant, telling him, “I don’t think your father is as sick as you think he is.” Defendant, very upset, responded, “Go to hell. I’ve been taking care of him for years. I’ll take care of him.” Defendant was then left alone in the room with his father.

Alone at his father’s bedside, defendant began to cry and to tell his father how much he loved him. His father began to cough, emitting a gurgling and rattling noise. Extremely upset, defendant pulled a small pistol from his pants pocket, put it to his father’s temple, and fired. He subsequently fired three more times and walked out into the hospital corridor, dropping the gun to the floor just outside his father’s room.

Following the shooting, defendant, who was crying and upset, neither ran nor threatened anyone. Moreover, he never denied shooting his father and talked openly with law enforcement officials. Specifically, defendant made the following oral statements: “You can’t do anything to him now. He’s out of his suffering.” “I killed my daddy.” “He won’t have to suffer anymore.” “I know they can burn me for it, but my dad will not have to suffer anymore.” “I know the doctors couldn’t do it, but I could.” “I promised my dad I wouldn’t let him suffer.”

Though defendant’s father had been near death as a result of his medical condition, the exact cause of the deceased’s death was determined to be the four point-blank bullet wounds to his head. Defendant’s pistol was a single-action .22-calibre five-shot revolver. The weapon, which had to be cocked each time it was fired, contained four empty shells and one live round.

On the issue of malice, the trial court consistently instructed the jury as follows:

Malice means not only hatred, ill-will or spite, as it is ordinarily understood; to be sure that’s malice. But it also means that condition of the mind that prompts a person to take the life of another intentionally, or to intentionally inflict serious bodily harm which proximately results in his death without just cause, excuse or justification.

If the State proves beyond a reasonable doubt that the defendant killed the victim with a deadly weapon, or intentionally inflicted a wound upon the victim with a deadly weapon that proximatley [sic] caused the victim’s death you may infer, first, that the killing was unlawful. Second, that it was done with malice. But you are not compelled to do so.

Here, claims defendant, where the facts presented tended to show a distraught son who wanted merely to end his father’s suffering, the evidence in fact negated the element of malice. According to defendant, there was no rational connection here between the fact proved (intentional use of a dangerous weapon) and the fact inferred (malice).

Significantly, the trial court did not instruct the jury that malice should be presumed. On the contrary, the trial court instructed the jury that it “may infer” that the killing was unlawful and committed with malice, but that it was not compelled to do so. The trial court properly instructed the jury that it should consider this permissive inference along with all the other facts and circumstances, including defendant’s belief that his father was terminally ill or in danger of immediate death, in deciding whether the State had proven malice beyond a reasonable doubt. Defendant’s first argument therefore lacks merit

In his second assignment of error, defendant asserts that the trial court committed reversible error in denying his motion for directed verdict as to the first-degree murder charge. Specifically, defendant argues that the trial court’s submission of the first-degree murder charge was improper because there was insufficient evidence of premeditation and deliberation presented at trial. We do not agree, and we therefore overrule defendant’s assignment of error

First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. The phrase “cool state of blood” means that the defendant’s anger or emotion must not have been such as to overcome his reason.

Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence. Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. We have also held that the nature and number of the victim’s wounds is a circumstance from which premeditation and deliberation can be inferred.

we hold in the present case that there was substantial evidence that the killing was premeditated and deliberate and that the trial court did not err in submitting to the jury the question of defendant’s guilt of first-degree murder based upon premeditation and deliberation. Here, many of the circumstances that we have held to establish a factual basis for a finding of premeditation and deliberation are present. It is clear, for example, that the seriously ill deceased did nothing to provoke defendant’s action. Moreover, the deceased was lying helpless in a hospital bed when defendant shot him four separate times. In addition, defendant’s revolver was a five-shot single-action gun which had to be cocked each time before it could be fired. Interestingly, although defendant testified that he always carried the gun in his job as a truck driver, he was not working on the day in question but carried the gun to the hospital nonetheless.

Most persuasive of all on the issue of premeditation and deliberation, however, are defendant’s own statements following the incident. Among other things, defendant stated that he had thought about putting his father out of his misery because he knew he was suffering. He stated further that he had promised his father that he would not let him suffer and that, though he did not think he could do it, he just could not stand to see his father suffer any more. These statements, together with the other circumstances mentioned above, make it clear that the trial court did not err in submitting to the jury the issue of first-degree murder based upon premeditation and deliberation. Accordingly, defendant’s second assignment of error is overruled.

North Carolina Supreme Court Decisions, Selections from “State v. Forrest, 362 S.E.2d 252,” 1987.

Following a party for his softball team at a club where he admitted drinking six beers, Doub admitted that his pickup struck two parked vehicles and that he left the scene because he was concerned that he had been drinking. Doub ultimately admitted that, approximately 2 hours after striking the parked cars, he drove his pickup into the rear of a Cadillac in which 9–year–old Jamika Smith was a passenger. According to the State’s accident investigator, the collision occurred as Doub’s pickup, “going tremendously faster,” drove “up on top of [the Cadillac],” initially driving it down into the pavement, and ultimately propelling it off the street and into a tree. Doub offered no aid to the victims, left the scene of the accident, and initially denied any involvement in the collision, suggesting that his pickup had been stolen. Some 15 hours after the collision, Smith died as a result of blunt traumatic injuries caused by the collision.

Approximately 6 months after these events, Doub admitted to a former girlfriend that he had a confrontation with his second ex-wife the evening of the collision, had been drinking alcohol and smoking crack, and had subsequently caused the collision. The girlfriend approached the authorities with Doub’s statements, which suggested that Doub left the softball party, caused the collisions with the parked vehicles, left that scene, subsequently consumed the additional alcohol and crack cocaine, and then caused the collision resulting in Smith’s death, all within a 2– to 3–hour period.

Doub was charged with: (1) second-degree depraved heart murder. Doub appeals, challenging the sufficiency of evidence to support his conviction of second-degree depraved heart murder.

K.S.A.2003 Supp. 21–3402 defines second-degree murder as follows:

“Murder in the second-degree is the killing of a human being committed:

1. Intentionally; or
2. unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.”

When the offense is committed pursuant to subsection (b), our courts have employed the common-law nomenclature of “depraved heart” second-degree murder.

In State v. Robinson, 261 Kan. 865, 876–78, 934 P.2d 38 (1997), our Supreme Court discussed the requirements for depraved heart murder:

“Both depraved heart murder and reckless involuntary manslaughter require recklessness—that the killing be done under circumstances showing a realization of the imminence of danger and a conscious disregard of that danger. Depraved heart murder requires the additional element that the reckless killing occur under circumstances manifesting extreme indifference to the value of human life.

. . .

“We hold that depraved heart second-degree murder requires a conscious disregard of the risk, sufficient under the circumstances, to manifest extreme indifference to the value of human life. Recklessness that can be assimilated to purpose or knowledge is treated as depraved heart second-degree murder.

The state of mind or mens rea required for second-degree murder has been somewhat problematic throughout the history of Anglo–American jurisprudence. As early as 1762, Sir Michael Foster termed the requisite mental state for the common-law offense as a “heart regardless of social duty and fatally bent upon mischief.” Instead, our focus is the statutory language adopted in Kansas that apparently had its genesis in the Model Penal Code first proposed in 1962, which required killing “recklessly under circumstances manifesting extreme indifference to the value of human life.”

One commentator surveyed 20 cases between 1975 and 1986 and found the following factors as persuasive of the requisite state of mind:

“1. Intoxication.

“2. Speeding.

“3. Near or nonfatal collisions shortly before the fatal accident.

“4. Driving on the wrong side of the road.

“5. Failure to aid the victim.

“6. Failure to heed traffic signs.

“7. Failure to heed warnings about reckless driving.

“8. Prior record of driving offenses

Application of these factors seems appropriate to determine whether evidence in a particular case meets the requisite state of mind, but we are mindful that no precise universal definition or exclusive criteria is appropriate. The comments to the Model Penal Code declare that “recklessness” must be of such an extreme nature that it demonstrates an indifference to human life similar to that held by one who commits murder purposely or knowingly, but precise definition is impossible.

Considering the presence of many of those factors significant to other courts, we are convinced that a rational factfinder could have found Doub guilty of depraved heart second-degree murder beyond a reasonable doubt. The evidence against Doub is particularly damning considering that (a) he admits that his driving was preceded by drinking; (b) he admits that he struck two parked cars and ignored commands to stop because he was concerned that he had been drinking; (c) he then consumed additional alcohol and used crack cocaine; (d) he then resumed driving and caused a fatal collision, due in part to excessive speed; (e) he failed to render aid to the victims; and (f) he fled the scene in order to avoid criminal liability. We conclude that these facts clearly demonstrate an extreme indifference to human life.

Affirmed.

What this case illustrated was the standard for depraved heart murder in the context of an automobile accident. Despite that limited scope of the crime, the analysis can still be useful to apply to other situations of depraved heart. Looking at the factors considered those can also be applied in another case – whether the defendant had any previous criminal history, whether the defendant had been intoxicated, whether the defendant had an opportunity to stop, all of these factors are important considerations to prove the elements.

Court of Appeals of Kansas, Selections from “State v. Doub, 95 P.3d 116,” 2004.

On August 30, 2002, Thornton, who at the time was sixteen years old, was at the Towson Town Center Shopping Mall with friends to shop for the upcoming school year when they ran into “Jason,” who was also with a group of friends, among them seventeen-year-old Kevin Taylor.

Jan Rebecca Wilson and Matthew Mayrer, called as witnesses for the State, testified that they were employees at the Rain  Forest Cafe at Towson Town Center Mall. They testified that they were working there on August 30, and that between 8:30 and 9:00 p.m. that night they were in the parking lot taking a smoking break. Wilson testified that she heard loud voices and turned to see two groups of kids arguing about fifteen feet away. Two of the kids, one from each group, then got into a physical fight. During the fight, Wilson heard one kid from the group that was standing closest to her say “which one of you [expletive] wants to get in on this.” In response to this statement, Taylor stepped up and walked towards the kid who had spoken with his hands positioned “out on the side in a ready position.” According to Wilson, the kid who had spoken then pulled out a knife and stabbed Taylor in the stomach Wilson testified that when Taylor was stabbed, it was the individual with the knife who closed the last ground between the two by making one step towards Taylor, followed by a stabbing motion. Taylor’s shirt then turned red and he fell to the ground. The individual with the knife fled and Wilson called the police. According to Wilson, the entire confrontation lasted “probably less than five minutes.”

Matthew Mayrer testified that he was outside the Rain Forest Cafe with Wilson when he heard a group of six to ten kids “talking trash” to each other. According to Mayrer, two of the kids started wrestling, and the group divided into two halves cheering on the two combatants. Mayrer testified that one of the spectators on the right hand side said “which one of you [expletive] want to jump in[,]” and that Taylor accepted this challenge and strutted towards the issuer of the challenge with his hands positioned “to his sides in a tough guy position.” Taylor did not have a weapon. As Taylor approached Thornton, Thornton lunged forward, apparently to   punch Taylor in the stomach. Mayrer realized that Thornton had a knife when, instead of being driven backward as if he had been punched, Taylor froze, and his white shirt immediately burst bright red. Mayrer testified that the last distance between Taylor and Thornton was closed by Thornton.

Detective Gary Childs, another witness called by the State, testified that Thornton admitted to stabbing Taylor in the leg because he was afraid that Taylor would hurt him. Thornton told Detective Childs that he then left the area on a bus and took  the knife to the house of an 11-year-old boy, whom he asked to get rid of the knife for him. Thornton subsequently took the investigating detectives to the young boy’s house to retrieve the knife.

Dr. Aronica-Pollak, Assistant Medical Examiner for the State of Maryland and an expert in the field of forensic pathology, was called as a witness for the State. She testified that the autopsy showed that there were two stab wounds and one cutting wound, and that the victim died from complications with those wounds. The “stab wound [was three inches deep] to the left inguinal area injured the left external iliac artery and vein (major blood vessels), resulting in extensive bleeding.” Another stab wound cut one-and-a-half inches deep and was approximately two and a half inches from the three-inch wound.

Thornton, testifying in his own defense, explained that Taylor was mad that Beard was winning the fight with Jason, and began jumping around and talking about people jumping in the fight. Taylor then took off his shirt which, according to Thornton, meant that he was preparing to fightThornton testified that he took a step back onto the curb, but Taylor kept approaching with his fist balled up and looking as though Taylor was going to hit him. According to Thornton, he took out the knife with the intention of scaring Taylor away, but Taylor kept coming and, in response, Thornton said he lunged forward and stabbed Taylor in the leg.

The defendant appeals the decision based on . . . (1) in stating that because an individual knows that thrusting a knife out could result in death, that satisfies the intent requirement; (2) in equating intent to do grievous bodily harm (second-degree murder) with intent to do serious physical injury (first-degree assault); and (3) in stating that Thornton could be held liable for murder if death were merely a possible consequence of his action (rather than the likely consequence).

Although second-degree murder is defined by statute as encompassing all “other kinds of murder,” this Court has distinguished four different types of second-degree murder

Second-degree murder embraces a killing accompanied by any of at least three alternative   mentes reae: killing another person (other than by poison or lying in wait) with the intent to kill, but without the deliberation and premeditation required for first degree murder; killing another person with the intent to inflict such serious bodily harm that death would be the likely result; and what has become known as depraved heart murder – a killing resulting from ‘the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not.’

Murder of the intent-to-inflict-grievous-bodily-harm type is, by definition, a specific intent crime, even though there is no conscious or purposeful design to kill the victim. The intermediate appellate court acknowledged that “the critical distinction that needs to be made . . . is between the results specifically intended, not between the presence or absence of a specific intent. Although there is the purpose or design that the victim should suffer serious physical harm, there is no necessary purpose or design that the victim should die”

In the present case, the trial judge found that Thornton did not possess a specific intent to kill his victim. According to the autopsy report, Taylor was stabbed in the left leg, in the front of his thigh in the area near his groin. The judge accepted Thornton’s testimony that he stabbed Taylor “just to get him away” and that Thornton pulled the knife out “expect[ing] [Taylor] to back off.” The trial judge also indicated that malice was implied. Yet, at no time, did the trial judge state that Thornton stabbed Taylor with the intent to inflict grievous bodily harm. Essentially, the trial judge reasoned that because Thornton was responsible for his actions, i.e., stabbing Taylor one time in the leg, he, therefore, must have known that the act would inflict serious bodily harm and that death would be a possible or probable consequence of that harm.

Significantly, while discussing the legal meaning of the phrase “intent to inflict such  serious bodily harm that death would be the likely result,” the trial judge stated:

If subjectively he’s thinking, yeah, he swings out and stabs him in the leg just to get him away but he dies, and he at no time had any intent to kill anybody . . . but he uses . . . [what] turns out to be serious bodily harm, even though that wasn’t what he was after . . . I mean, isn’t the law that you do something like that, the consequences are yours.

In this statement, even though the judge, arguably, was speaking hypothetically, he incorrectly stated the required mens rea for second-degree murder of the intent-to-do-grievous-bodily-harm type. To the contrary, “using what turns out to be serious bodily harm,” cannot serve as a substitute for intent to inflict grievous bodily harm. The intent to inflict grievous bodily harm is a life-threatening state of mind. Thus, in order to convict Thornton, the trier of fact was required to find that Thornton’s desire or purpose was to inflict such harm that a reasonable person, under the circumstances, could or should have anticipated that death would likely occur. Consequently, Thornton cannot be held liable, under an objective standard, for the ultimate consequence of death, if death or serious bodily harm “wasn’t what he was after.”

Here, the trial judge erred by substituting the notion of responsibility for one’s actions and the act of stabbing the victim in the leg for knowledge that death would likely occur. First, use of the knife to stab Taylor in the leg does not necessarily mean that Thornton possessed the intent to inflict grievous bodily harm such that death would be the likely result.

We hold also that the trial judge, as did the intermediate appellate court, erred in equating intent to do grievous bodily harm (second-degree murder) with intent to do serious physical injury (first-degree assault.

 Second-degree murder of the intent to inflict grievous bodily harm is neither a strict liability crime nor a crime predicated upon a theory of negligence. Accordingly, the State must prove intent to injure the victim so severely that death would be the likely result even though the defendant did not intend that the victim should die. Malice remains an element of the prosecution’s case. It can be satisfied by proving the intent to inflict such grievous bodily harm that death would be the likely result.

Court of Appeals of Maryland, Selections from “Thornton v. State, 397 Md. 704,” 2007.