OUJI-CR 4-65A

MURDER IN THE FIRST DEGREE INVOLVING

DEATH OF CHILD - ELEMENTS

No person may be convicted of murder in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the death of a child under the age of eighteen;

Second, the death resulted from the willful or malicious injuring/ torturing/maiming/(using of unreasonable force);

[Third, by the defendant.]

OR

[Third, which was willfully caused/procured;

Fourth, by the defendant.]

OR

[Third, which was willfully permitted by the defendant;

Fourth, who was responsible for the child's health or safety.]

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Statutory Authority: 21 O.S. 2001, § 701.7(C).

Notes on Use

The definition of "willful" in OUJI-CR 4-39 should be used with this Instruction. Fairchild v. State, 1999 OK CR 49, ¶ 75, 998 P.2d 611, 626, Bannister v. State, 1997 OK CR 69, ¶ 6, 930 P.2d 1176, 1178; Hockersmith v. State, 1996 OK CR 51, ¶ 12, 926 P.2d 793, 795.

For the definition of a person responsible for the child's health or safety, see OUJI-CR 4- 39, supra.

Committee Comments

The constitutionality of 21 O.S. 1991, § 701.7(C) as applied to the perpetrator or the perpetrator's accomplice, was upheld in Drew v. State, 1989 OK CR 1, ¶¶ 10-16, 771 P.2d 224, 227-28. The Court of Criminal Appeals addressed the statute as applied to a person who willfully permitted the death of the child in Gilson v. State, 2000 OK CR 14 , ¶¶ 90-95, 8 P.3d 883, 913-14.

Prior to the addition of section 701.7(C), the Oklahoma Court of Criminal Appeals had ruled that the underlying felony of child abuse could not form the basis for a felony murder conviction because it was not independent of the homicide. Tucker v. State, 1984 OK CR 36, ¶ 3, 675 P.2d 459, 461. By enacting section 701.7(C), the Oklahoma Legislature has changed this rule by clearly stating its intention to punish as murder in the first degree the use of unreasonable force upon a child that causes the child's death. Schultz v. State, 1988 OK CR 17, ¶ 6, 749 P.2d 559, 561-62.

In Fairchild v. State, 1999 OK CR 49, ¶ 51, 992 P.2d 350, 361, the Oklahoma Court of Criminal Appeals decided that the mens rea for child-abuse murder under 21 O.S. Supp. 1999 § 701.7(C) was a general intent to commit the act which causes the injury, rather than a specific intent, and that the general intent was included within the terms "willfully" or "maliciously."

(2003 Supp.)