“The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, …”
Findlaw lists the justifiable use of force as one of several defenses to second degree murder. By contrast, the definition of manslaughter an be found in section 782.07 (1):
“The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, …”
The Chapter 776 referenced in the manslaughter definition is the “Justifiable Use of Force” part of Florida law.
So what does the State have to prove to get a second degree murder conviction? Again, from a blog post at Findlaw:
Florida’s jury instructions (which are based on the Florida statute) spell out three elements that prosecutors must prove to establish second degree murder beyond a reasonable doubt:
- The victim is deceased,
- The victim’s death was caused by the defendant’s criminal act, and
- There was an unlawful killing of the victim “by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.”
The last element — an “imminently dangerous” act that shows a “depraved mind” — is further defined by Florida’s jury instructions. Three elements must be present:
- A “person of ordinary judgment” would know the act, or series of acts, “is reasonably certain to kill or do serious bodily injury to another”;
- The act is “done from ill will, hatred, spite, or an evil intent”; and
- The act is “of such a nature that the act itself indicates an indifference to human life.”
I can’t see how the State can prove this aspect of the alleged crime. This was clearly an act that took place during a heated argument with physical violence. Defending oneself can hardly be seen as done from ill will, hatred, spite or evil intent.
Others agree with me.