OUJI-CR 4-63



The external circumstances surrounding the commission of a homicidal act may be considered in finding whether or not deliberate intent existed in the mind of the defendant to take a human life. External circumstances include words, conduct, demeanor, motive, and all other circumstances connected with a homicidal act.


Statutory Authority: 21 O.S. 1991, § 701.7.

Notes on Use

This instruction must be given in every prosecution for murder in the first degree with malice aforethought.

Committee Comments

The Death of a Human. Homicide is defined in section 691 of Title 21 as "the killing of one human being by another." An unborn fetus that is viable at the time of injury is a "human being" and therefore may be the subject of a homicide. Hughes v. State, 868 P.2d 730, 731 (Okl. Cr. 1994).

The Death was Unlawful. The second element states the statutory requirement that the taking of life be done "unlawfully." Section 711(2) and sections 731 and 733 of Title 21 raise the same issue. The absence of legal justification for the homicide distinguishes a killing for which the defendant may be criminally culpable from a killing for which the defendant may not be so liable, for, as the court stated in Smith v. State, 59 Okl. Cr. 111, 115, 56 P.2d 923, 925 (1936), "[e]ven a justifiable homicide may be premeditated." Omission of this element thus makes indistinguishable criminal homicide from homicide which the law excuses.

The Court of Criminal Appeals ruled that omission of this element of lack of legal justification in a jury charge was reversible error in Green v. United States, 2 Okl. Cr. 53, 101 P. 112 (1909), wherein self-defense was raised as a defense to a charge of murder. The court noted regarding the erroneous instruction:

This definition entirely overlooks the fact that a killing may be intentional and yet not malicious. If the thought "I will kill" precedes the act, it may properly be characterized as aforethought but not "malice aforethought". This charge practically withdraws from the jury the right to convict the defendant of manslaughter or to acquit. The defendant's own testimony showed that before he fired, the thought "I will kill" was actively controlling his conduct; so that if the jury believed his testimony, and followed the instructions of the court, there was nothing left but to convict him of the charge of murder.

at 61-62, 101 P. at 114.

Analogous is the more frequently litigated situation where an instruction concerning manslaughter in the first degree omits the corresponding statutory language of section 711(2): "unless committed under such circumstances as constitute excusable homicide or justifiable homicide." The court reversed a conviction for first degree manslaughter under an instruction omitting this phrase from the definition of the crime in Anderson v. State, 90 Okl. Cr. 1, 209 P.2d 721 (1949). Submission of an instruction on justifiable homicide was held ineffectual in cure of this error. See also Lee v. State, 96 Okl. Cr. 170, 250 P.2d 883 (1952) (instruction omitting element of unlawfulness disapproved, but error cured by later instruction).

It is well settled that, in a case where the defendant has affirmatively raised as a defense that the homicide was justifiable, omission of the element of unlawfulness from the instruction regarding those elements which the State must prove in order to establish its case would constitute reversible error. Once the defendant has adduced evidence sufficient to raise a reasonable doubt regarding guilt, the burden of presenting evidence to negate that defense beyond a reasonable doubt devolves upon the State. See, e.g., Saulsbury v. State, 83 Okl. Cr. 7, 172 P.2d 440 (1946).

The more difficult issue involves those cases wherein the defendant offers no evidence that the homicide was lawful or justifiable. Without question, the rule is that the State need not produce evidence negating all possible defenses to the crime in order to warrant conviction. In this regard, 22 O.S. 1991, § 745 provides:

Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.

A series of Oklahoma cases accord with this provision, stating that, in order to establish a prima facie case of murder, the prosecution is required to prove only two facts: death of the deceased; and that the deceased was slain by the defendant. See, e.g., Thompson v. State, 365 P.2d 834 (Okl. Cr. 1961); Sawyer v. State, 94 Okl. Cr. 412, 237 P.2d 167 (1951); Saulsbury v. State, supra; Hawkins v. United States, 3 Okl. Cr. 651, 108 P. 561 (1910). The question then becomes whether inclusion of lack of justification as an element of proof conflicts with this settled precedent. The answer is negative. The constitutional validity of this statute, read literally, might be open to question in light of United States Supreme Court pronouncements. See, e.g., Sandstrom v. Montana, 442 U.S. 510 (1979); Mullaney v. Wilbur, 421 U.S. 684 (1975). However, the Court of Criminal Appeals has expressly denominated the law as merely a statement of trial procedure and has rejected the contention that it constitutes a pronouncement of substantive law sufficient to overcome fundamental conceptions regarding the rights of an accused as pertaining to burdens of proof or presumptions of innocence. Meadows v. State, 487 P.2d 359 (Okl. Cr. 1971).

Thus, since the statutory requirement that homicide be committed "unlawfully" embodies an essential element of the crime which must be proved beyond a reasonable doubt, it is one upon which the jury must be instructed. Turner v. State, 4 Okl. Cr. 164, 111 P. 988 (1910); Green v. United States, supra.

Absence of legal justification may be established by permissible inferences from the facts proven by the State, and by the existence of the other essential elements of the crime. See People v. Loggin, 23 Cal. App. 3d 603, 100 Cal. Rptr. 528 (1972). Therefore, while the jury may be instructed where appropriate that it may infer from all the circumstances surrounding the slaying that it was done without justification or mitigation, lack of justification must also be presented in instructional form as an element to be proved by the prosecution.

The Death was Caused By the Defendant: Proximate, or Legal, Cause. The issue of whether the defendant's conduct suffices as the proximate, or legal, cause of death should arise only infrequently, given the fact that specific intent to commit homicide is an element of the offense. Where the defendant deliberately intends to effect death and inflicts grievous bodily harm upon the deceased, the fact that the immediate or contributing cause of the death is some other agency, such as subsequent negligent medical care, Pettigrew v. State, 554 P.2d 1186 (Okl. Cr. 1976), does not relieve the defendant of criminal responsibility for murder. The former year-and-a-day rule has been abolished by statute. See 21 O.S. Supp. 1995, § 694(B) ("The rule of the common law providing that a death occurring after a year and a day from the date of criminal corporal injury is irrebuttably presumed not to be the result of that injury is abolished.").

In the overwhelming majority of cases, death will have occurred as the natural and probable result of the defendant's act, in the manner he intended, and in a manner which he could reasonably foresee from his performance of that act.

The Death was Caused With Malice Aforethought. Perhaps the most striking feature of section 701.7 is its substitution of the language "malice aforethought," and the statutorily included definition thereof, for the "premeditated design to effect the death" statement of requisite intent which had served as the appropriate definition of necessary mental intent since Oklahoma statehood. The instruction employs the statutory language of section 701.7. But the question regarding legislative intent is obvious: Did the legislature intend to effect a change in the requisite mental state which must be proved in order to warrant conviction for murder in the first degree?

Clearly, proof of mental state establishing an intent to kill constitutes an essential element of the crime of murder in the first degree. Jewell v.Territory, 4 Okl. 53, 43 P. 1075 (1896); Spencer v. State, 231 Ga. 705, 203 S.E.2d 856 (1974). "Malice aforethought" gradually acquired a settled meaning at common law, encompassing not only specific intent to kill, but also intent to perpetrate serious bodily injury short of death, as well as conduct evincing "a depraved heart." Common law judges parsed "malice aforethought" into categories of "express," covering the first situation, and "implied," roughly covering the last two situations, but all states of mind constituted murder. W. LaFave & A. Scott, Criminal Law § 67, at 528-30 (1972); R. Perkins, Criminal Law 34-37 (2d ed. 1969). Many American jurisdictions have statutorily adopted this common law definition of murder.

Oklahoma, however, has opted to be among those jurisdictions which have statutorily defined first-degree murder to require a specific intent to kill. Until 1973, Oklahoma did not have degrees of murder. 21 O.S. 1971, § 701 (repealed by Laws 1973, c. 167 § 7, emerg. eff. May 17, 1973). Prior to the adoption of the mens rea requirement of malice aforethought, the requirement of "premeditated design to effect the death" had been defined by the Oklahoma Court of Criminal Appeals as the "mental purpose to take human life," a "formed intent to kill," Basham v. State, 47 Okl. Cr. 204, 287 P. 761 (1930), a requisite mental state which "takes the place of the common-law doctrine of express malice aforethought." Turner v. State, 8 Okl. Cr. 11, 23, 126 P. 452, 457 (1912) (quoting Blackstone). See also Gatewood v. State, 80 Okl. Cr. 135, 157 P.2d 473 (1945); Easley v. State, 78 Okl. Cr. 1, 143 P.2d 166 (1943); Kent v. State, 8 Okl. Cr. 118, 126 P. 1040 (1912). On occasion, the court has utilized the terms "malice" and "premeditated design" as though they were interchangeable. See, e.g., Morgan v. State, 536 P.2d 952, 955 (Okl. Cr. 1975), overruled on other grounds, Walton v. State, 744 P.2d 977, 979 (Okl.Cr. 1987); Gatewood, supra.

The statutory language of section 701.7 is largely adapted from section 1101 of Title 26, Criminal Code of Georgia (Acts 1968, pp. 1249, 1276), which provides in pertinent part:

A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.

Thus, the Legislature's adoption of only that portion of the Georgia statute which describes "express malice" in its definition of the mental state required to warrant conviction for murder in the first degree accords with the mental state required under the former "premeditated design to effect the death" formulation: specific purpose or formed intent to take human life. Therefore, the Oklahoma Legislature has effectively altered the common law connotations of the mental state described by "malice aforethought," by defining it as to a specific intent to kill.

Section 701.7 omits the word "premeditated" and substitutes instead "aforethought" to describe the timing of the formulation of the requisite intent, raising a question regarding the relationship between this statute and section 703 of Title 21, which has not been repealed, and provides: "A design to effect death sufficient to constitute murder may be formed instantly before committing the act by which it is carried into execution."

It is settled law that the term "premeditation" has never been construed in Oklahoma, as it has been in other jurisdictions, particularly in those wherein murder is divided into degrees, as requiring prior deliberation or "lying in wait" preceding the crime. R. Perkins, Criminal Law 88-96 (2d ed. 1969). Rather, "premeditation" describes "a formed intent to kill, and such intent may be formed instantly preceding the act of killing." Easley, supra, 78 Okl. Cr., at 8, 142 P.2d, at 170. The court in Easley expounded upon the interpretation of the statutory language of section 703 as follows:

A premeditated design under our law need not be entertained for any appreciable length of time. It may be a design formed instantly before committing the act by which it is carried into execution. The time requisite to constitute premeditated design may not be distinguished from the act of killing, although it may be said to precede the act. Premeditation is an intent before the act of killing. It means entertainment by the mind of a design to kill, and is often defined as "thought of beforehand, any length of time, however short." However, the word "premeditatedly" does not mean "thought of" in the sense of "thought over."

Id. Other cases espousing this construction of the term "premeditated" as it was used in the pre-1973 section 701 include Jones v. State, 94 Okl. Cr. 359, 236 P.2d 102 (1951); Basham v. State, 47 Okl. Cr. 204, 287 P. 761 (1930); Harrison v. State, 18 Okl. Cr. 403, 195 P. 511 (1921); Wadsworth v. State, 9 Okl. Cr. 84 130 P. 808 (1913).

The term "aforethought" was accorded a similar construction at common law. Commentators maintain that, although the word "aforethought" was appended to "malice" in very early cases to indicate a plan conceived prior to execution of the fatal act, the emphasis upon the requirement of a well-laid plan diminished with time. R. Perkins, Criminal Law 34-35 (2d ed. 1969). Current understanding of "aforethought" requires merely that the intent to slay not be formed as an afterthought. Since the statutory definition of "malice" requires a "deliberate intention" which necessarily negates the notion of afterthought, the "aforethought" limitation is probably a superfluity. However, since the primary development of the state-of-mind requirement for murder has been premised upon this term, retaining it to express the concept facilitates understanding. R. Perkins, supra, at 35.

The gravamen of "malice aforethought" is that the intention to slay may be conceived and executed on the spur of the moment. In this regard, then, it appears that no inconsistency with section 703 or existing case law is intended by the substitution of "aforethought" for "premeditated." This conclusion is buttressed by decisions interpreting the Georgia statute upon which section 701.7 is based. See, e.g., Dixon v. State, 243 Ga. 46, 252 S.E.2d 431 (1979) ("malice necessary to support a conviction for murder can be formed immediately prior to a slaying; the jury is only required to find that malice existed at the time of the slaying and motivated the act"); Burnett v. State, 240 Ga. 681, 242 S.E.2d 79 (1978).

The jury should be instructed regarding formation of the requisite intent, to avoid the possibility that the jurors will view it as requiring a preconceived plan to kill. The language of the instruction tracks that found in section 703 and many Oklahoma cases discussing "premeditation." See, e.g., Jones v. State, supra; Easley v. State, supra; Basham v. State, supra.

Another question is raised by a language change in section 701.7 regarding the problem of toward whom the intent to kill must be directed. The prior murder statute, section 701, articulated the requisite intent as "premeditated design to effect the death of the person killed, or of any other human being." The emphasized language raises the unintended-victim situation, where the defendant acts only with the intent to kill A but also (or instead) succeeds in killing B. Through utilization of a legal fiction, defendant would be responsible for the murder of B, the unintended victim. See generally W. LaFave & A. Scott, Criminal Law §§ 34-35 (1972). Although Oklahoma cases echo the statutory language and therefore refer to an intent to effect the death of "any other human being" in describing mental state, see, e.g., Kent v. State, 8 Okl. Cr. 188, 126 P. 1040 (1912), no Oklahoma cases squarely confront the issue of criminal responsibility for the death of an unintended victim.

Assuming that section 701 did embrace the concept that the defendant was criminally responsible for the death of a person he did not specifically intend to kill, as the language indicates, the wording of section 701.7 is much less clear in this respect. The defendant must, with malice aforethought, cause the "death of another human being," while intending "to take away the life of a human being." The Commission has assumed that this broad statement of requisite intent also encompasses the situation where the defendant slays someone other than the person he intended to kill. The widely recognized theory of responsibility for the death of an unintended victim is sometimes referred to as "transferred intent." See generally Am. Jur. 2d Homicide § 11. See also Jones v. State, 508 P.2d 280, 282 (Okl. Cr. 1973) (approving jury instruction on transferred intent in an assault case). Therefore, the last paragraph is included in the instruction to bring the concept to the jurors' attention where appropriate. Obviously, in the absence of evidence that the defendant's intent was in fact to kill a person other than the deceased, this paragraph should be omitted from the instruction.

Section 701.7 states that the requisite "malice aforethought" may be "manifested by external circumstances capable of proof," raising an issue regarding the relationship between this articulation of the mode of proof of malice and section 702, which has not been repealed and provides: "A design to effect death is inferred from the fact of a killing, unless such circumstances raise a reasonable doubt whether such design existed."

Proof regarding the motivating forces which impel a person to act is often found only in the circumstances surrounding the commission of the conduct, and the jury should be instructed that it may consider such circumstances in determining whether the accused acted with the requisite intent. However, the mandatory connotation of the language "is inferred" may prove confusing to jurors because it suggests a conclusion that the jury is required to draw where they find that the defendant killed the deceased, unless reasonable doubt is raised by the circumstances. Therefore, this language should be avoided.

In construing this language, Oklahoma cases seem to view the law as allowing a permissive inference. See, e.g., Jones v. State, 94 Okl. Cr. 359, 236 P.2d 102 (1951); Gatewood, supra. However, some cases seem to view the statutory mandate as a nonconclusive presumption regarding the defendant's intent. In Wadsworth v. State, supra, 9 Okl. Cr., at 93, 130 P. at 811 (1913), the court stated:

It is also good law and good morals that men are presumed to intend the natural and reasonable consequences of their acts, and that an intention to kill arises from the act of killing, unless the circumstances raise a reasonable doubt whether such design in fact existed.

Accord, Edwards v. State, 58 Okl. Cr. 15, 48 P.2d 1087 (1935); Schmitt v. State, 57 Okl. Cr. 102, 47 P.2d 199 (1935).

In light of recent United States Supreme Court pronouncements, the constitutional validity of phrasing an instruction in terms that may be interpreted by jurors as raising presumptions regarding intent, or as shifting the burden of persuasion regarding reasonable doubt to defendant, is most questionable. See, e.g., Sandstrom v. Montana, supra; Mullaney v. Wilbur, supra. Thus, another reason for disregarding the language of section 702 is presented.

As indicated previously, an instruction should be given regarding proof of malice aforethought in order to forestall the possibility that the jurors will presume the existence of the requisite intent from the fact of the slaying alone.

The nature of circumstances indicative of specific intent to kill obviously varies endlessly from case to case. In Houck v. State, 563 P.2d 665 (Okl. Cr. 1977), the deceased was discovered with a towel wrapped tightly around his neck. A physician testified that strangulation was the cause of death, and that it took approximately one to two minutes for the deceased to succumb. The court ruled that these facts would support an inference regarding the defendant's mental state to effect an intentional killing. The nature of the weapon, if any, used to effect death, the conduct of the defendant in going to the scene of the homicide armed with a weapon, the relationship between the defendant and the deceased, if any, are among "external circumstances capable of proof" which may shed light on the defendant's intent. Wadley v. State, 553 P.2d 520 (Okl. Cr. 1976); Gatewood v. State, supra; Davis v. State, 237 Ga. 279, 227 S.E.2d 249 (1976). Cf. Wood v. State, 486 P.2d 750 (Okl. Cr. 1971) (murder conviction modified to manslaughter where defendant slew deceased by hitting him on the head with a heavy board during a tavern fracas and evidence showed defendant's fear, but no proof of motive or that defendant sought out, or even knew, deceased).

The instruction merely informs the jury that surrounding circumstances may be taken into account in determining whether the defendant harbored the necessary malice aforethought. Terms such as "infer," "imply," or "presume" were rejected by the Commission in order to avoid the potential difficulties raised earlier in the Commission Comment discussing section 702.