Notes on Use

The last bracketed sentence in this instruction should be given only where the accused disputes a causal link between his alleged omission and the deceased's death, and the required legal duty of the defendant to act is demonstrated.

Committee Comments

This instruction addresses the issue of causation. It incorporates the concept of the defendant's conduct as a substantial factor in the death, in accordance with Oklahoma cases. See, e.g., Pettigrew v. State, 1976 OK CR 228, 554 P.2d 1186; Chase v. State, 1963 OK CR 56, 382 P.2d 457; Pitts v. State, 53 Okl. Cr. 165, 8 P.2d 78 (1932). It also incorporates the concept of proximate cause, although the language "proximate" or "legal" is intentionally omitted in order to avoid confusing the jurors.

Disputes may arise concerning whether the defendant's conduct or some other, intervening agency "caused" the death, where several factors contribute to the victim's demise, as where the defendant shoots a victim at the verge of death from wounds inflicted by another, or in a proximate-cause sense, see, e.g., Pettigrew v. State, supra, or as exemplified by the common law "death within a year and a day" rule. The tort concept of proximate cause, that the consequences of the defendant's conduct occur as a "natural and probable result" of such conduct, is not reflected in homicide cases, which require that the injury inflicted be "dangerous," and be "calculated to destroy or endanger life." Pettigrew, supra, 1976 OK CR 228, ¶ 27, 554 P.2d at 1193, quoting 40 C.J.S. Homicide § 11c. The instruction makes no reference to "calculated," since the various homicide statutes define the requisite intent with which the conduct must be performed in order to constitute an offense.

In cases where the defendant does not dispute that certain conduct alleged forms the legal cause of the victim's death, but claims instead that he is not the perpetrator of the crime, or where the defendant admits that his conduct legally caused the death, but urges that such conduct establishes only a lesser included offense or raises an affirmative defense, the general causation instruction is superfluous and potentially confusing, and should not be given.

A prosecution for homicide may be premised upon failure to discharge a duty to the deceased placed by law upon the accused. This duty must be one related to the maintenance of life, and failure to perform this duty, accompanied by proof of the necessary mental state, must have the effect of shortening the life of the deceased within legal principles of causation. W. LaFave & A. Scott, Criminal Law § 190 (1972); R. Perkins, Criminal Law 602-04 (2d ed. 1969). Nonperformance of a duty as a basis for a homicide prosecution, however, is possible only where there is a duty to act imposed by law, such as that which exists between spouses or between parents and children. Unless there is a legal duty to the deceased incumbent upon the defendant, there can be no criminal responsibility for failure to act. For example, an expert swimmer who becomes aware that a child is drowning in a swimming pool cannot be prosecuted for homicide in the

event that the child drowns, unless the swimmer is the child's parent or legal guardian or is under some other duty to act, and the necessary proof of the swimmer's mental state in failing to act is adduced.