OUJI-CR 4-91



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

First, the death of a human;

Second, caused by conduct which was imminently dangerous to another/other person(s);

Third, the conduct was that of the defendant(s);

Fourth, the conduct evinced a depraved mind in extreme disregard of human life;

Fifth, the conduct is not done with the intention of taking the life of any particular individual.

You are further instructed that a person evinces a "depraved mind" when he engages in imminently dangerous conduct with contemptuous and reckless disregard of, and in total indifference to, the life and safety of another.

You are further instructed that "imminently dangerous conduct" means conduct that creates what a reasonable person would realize as an immediate and extremely high degree of risk of death to another person.

Committee Comments

In Willingham v. State, 1997 OK CR 62, ¶¶ 23, 24, 947 P.2d 1074, 1081 (overruled on other grounds, Shrum v. State, 1999 OK CR 41, n.8, 991 P.2d 1032, 1036), the Oklahoma Court of Criminal Appeals approved the above Instruction. Willingham overruled Palmer v. State, 1994 OK CR 16, ¶ 12, 871 P.2d 429, 432-33, which had included the words "or harming" immediately after "life" in the Fifth Element. The Court of Criminal Appeals held in Willingham that the existence of an intent to harm a particular individual would not preclude a conviction for second degree murder under 21 O.S. 1991, § 701.8. The historical background of Oklahoma's second degree murder statute is described below.

Section 701.8 substantially re-enacted subsection 2 of the pre-1973 murder statute, 21 O.S. 1971, § 701. The few cases construing the former subsection 2 make it clear that, where the defendant's conduct was directed toward or created a great risk to a particular individual, this statute was inapplicable. If the defendant intended to kill the individual imperiled, his conduct constituted "premeditated design" murder under section 701(1). If the defendant formed no purpose to kill the endangered person, but intended rather grievously to injure him, the defendant could not be found guilty of murder. Tarter v. State, 1961 OK CR 18, 359 P.2d 596; Fry v. State, 91 Okl. Cr. 326, 218 P.2d 643 (1950).

The Court articulated the quintessential interpretation of subdivision 2 of section 701 in Jewell v. Territory, 4 Okl. 53, 43 P. 1075, 1078 (1896) (emphasis added):

The class of cases intended to be covered by this subdivision is where the acts by which the homicide is perpetrated are directed against no particular person, but against a number of persons generally, or where the act is imminently dangerous to a number of persons but directed against none, - as when one rides a vicious horse into a crowd of persons with no intent to injure any person, but with a reckless disregard of human life; or, where one throws a heavy stone into a crowded street, or blows up a building with dynamite, knowing there are persons in the building, but with no design to kill anyone, but only with an intent to destroy the building. There are other cases that come within this class, but we use these as illustrations. And the statute has no application to a case where the act causing death is directed against some particular person, for then, if it is done with design to effect death, it comes within the class embraced within the first subdivision; or, if there is no premeditated design to effect death, then it is either one of the degrees of manslaughter, or justifiable, or excusable homicide.

See also Gibson v. State, 1972 OK CR 249, 501 P.2d 891; Ex parte Finney, 21 Okl. Cr. 103, 205 P. 197 (1922).

In Gibson v. State, 1970 OK CR 171, 476 P.2d 362, the defendant was being transported as a passenger in a vehicle driven by a deputy sheriff. The defendant lunged across the front seat, grabbed the steering wheel, and caused the automobile to swerve across the center line and collide with an oncoming vehicle. The deputy was killed, and the defendant was convicted of murder under section 701(2). In affirming the conviction, the Court observed:

A logical modernization of the 1896 example of riding a horse into a crowded street would be "steering one's speeding vehicle into the oncoming path of another speeding vehicle." The resulting injuries which are sure to follow from such a dangerous act evince a depraved mind and fall well within the pertinent provision of the statute. We are of the opinion, and therefore hold, that when, as in the instant case, it appears that a passenger in a motor vehicle seizes control of the steering wheel from the driver and steers said vehicle into the path of oncoming traffic, and a collision occurs resulting in the death of one or more occupants of two of the colliding vehicles, such evidence supports conviction under the provisions of 21 O.S. § 701, subsection 2.

Id. ¶ 10, 476 P.2d at 365.

However, pre-1973 interpretation of the depraved-mind murder statute does not limit the application of section 701.8 because of the significance of a minute language change effected by the legislature in enacting section 701.8. As noted in Jewell, subdivision 2 of section 701 employed the phrase "imminently dangerous to others," clearly connoting recklessness and depravity of spirit to the degree that society at large or, at least, numerous persons were endangered by the defendant's conduct. Section 701.8, by utilizing the terminology "imminently dangerous to another person" apparently effectuates a substantial alteration in the law of murder. If the defendant intends only to inflict grave injury, but not death, upon a particular individual, or "another person" in statutory terms, his conduct, which would constitute manslaughter and would not be included under the old section 701(2), may be encompassed within the literal language of section 701.8. For example, assume the defendant wishes to injure the victim, but harbors no desire to inflict death upon him. The defendant aims a gun at the victim's ankles, but, because he is a poor marksman, the defendant's shot strikes the victim in the back, and he dies. Although the former section 701(2) would denominate this crime manslaughter, at common law, as well as in many jurisdictions today, the defendant's act would constitute murder so long as the defendant formed an intent to do great bodily injury to the deceased and circumstances constituting mitigation, justification, or excuse were absent. W. LaFave & A. Scott, Criminal Law § 69, at 540-41 (1972); R. Perkins, Criminal Law 36 (2d ed. 1969).

The alteration of the language of the former section 701(2) from "imminently dangerous to others" to "imminently dangerous to another person" changed the law in Oklahoma. An accused may be convicted for second-degree murder under section 701.8 when his/her conduct evinces a depraved mind because it creates grave risk of serious bodily injury to a number of persons, in accordance with existing Oklahoma law. Gibson, supra; Jewell, supra. However, section 701.8 broadens Oklahoma law so that it also includes the common law concept that an "intent to do serious bodily injury" which impelled conduct by the defendant that resulted in death was sufficient to constitute murder. At common law, malice aforethought included not only a specific intent to take human life, express malice, but also an intent to perpetrate great bodily injury short of death, as well as conduct evincing a depraved mind, implied malice. Section 701.8 is not phrased in terms of malice. However, the intent to injure greatly, but not to kill, another person which is carried out by the accused through conduct that causes the person's death is conduct that is, in the language of the statute, "imminently dangerous to another person."

Thus, section 701.8 changed the result of Tarter v. State, supra, where the accused inflicted gunshot wounds on the deceased which caused his death, but without any intent to take his life. The Court of Criminal Appeals reversed the conviction for murder in Tarter and held that, where a reasonable doubt exists as to whether the accused harbored a specific intent to inflict death upon the victim, the jurors must be instructed on the elements of first-degree manslaughter, since a murder conviction under the former section 701(1) could not be sustained without proof of the accused's "premeditated design to effect death," and section 701(2) was made inapplicable to these facts by Jewell, supra. However, under the current statute, shooting the deceased with the intent to greatly injure the deceased amounts to conduct "imminently dangerous to another person," and an accused, in the opinion of the Commission, could be convicted of second-degree murder under section 701.8.

In principle, it seems as reasonable to term conduct "murder" when it is intended to inflict great bodily injury upon "another person" but succeeds in inflicting death, as it is to determine that conduct is murder when it creates unjustifiable risk to many individuals even without the defendant specifically intending to do so. The latter conduct characterizes depraved mind murder. Both are instances where the common law concept of implied malice would apply.

It is further the opinion of the Commission that, since the intent to inflict great bodily injury is sufficient to constitute "implied malice" only if there is no justification, excuse, or mitigation, R. Perkins, Criminal Law 36 (2d ed. 1969), the rule of provocation generally associated with manslaughter must be available as a means of mitigating the homicide from murder in the second degree to manslaughter in the first degree. Id.; W. LaFave & A. Scott, Criminal Law § 69, at 540-41 (1972).

(2000 Supp.)