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TX_Jim wrote: He did say that everything is speculation untill a determiniation is made by the "court." He did not specifically say "jury"...he said "court"...but I assume that is what he was talking about it.

Well, that means that prior to a "court" finding, no one can say definitively that a statute was violated in a particular case.

So, as I stated in the first place, the correct answer to the questions "Was the law violated?", and "Was a crime committed?", is, "Probably not, but we can't know unless and until a jury renders a verdict."

TX_Jim wrote: Also...if you notice in the thread...I conceaded that point long ago as it was never my intention to suggest that anyone other than a jury had the final say in any of this. This was not even a point i was trying to make...although i guess my wording may have seemed that way.

It sure did. I don't know how many times you said that the law was violated (based on what I presume to be your opinion) but that the jury might decide not to punish if they believed the act was justified. That's a lot different from saying that only the jury can finally determine whether or not the law was violated.

TX_Jim wrote: No..he did not use the word "clear cut." He did explain (much as txinvestigator did) that the court will first determine if a statute was violated...if it was not violated...than the court does not really care about justification...if the court does find that a statute was violated than they consider the justification. He said that this may be a little convoluted as the court hears all of this at once...both the prosecuter saying there was a violation and the defense saying it was justified. But in the end the court must first decide if there was a violation. He did say that a court, in this type of case, often times do not need to spend much time determining if a violation of statute occured because the defense usually does not argue against this and only argues the justification part.

The confusion here is over the fact that the jury has to consider all parts of the law that apply. One part says that if you do such and such, it is an offense. Another part says that if you have proper justification for doing such and such, it is not an offense.

Taking both applicable parts of the law into account yields the result, in this case, that the act was not an offense.

TX_Jim wrote: This was my point from the begining. Remember i said that no crime occured because a not guilty would be returned...but that does not mean a violation of statute did not occur. He did agree with that...just because the defendant was justified and found not guilty does not mean that the assualt statute was not violated.

The justification negates the "violation".

TX_Jim wrote: My point was that a court is most likely to see that a transgression occured but because it was justified...the court will not penalize the defendant by passing down a not guilty.

If the "transgression" was justified they will find not guilty because no crime occurred.

It's more than just not assessing a penalty. A not guilty verdict means that you don't have a criminal record either. That means that as a matter of fact, as determined by the jury, the state did not establish that you committed a crime.

That's a big difference.

Did the judge identify or specify just who it might be, besides a jury, that could state as a fact that some given act is a violation of the law?

Did the judge say that the standard for violating the law is just that an act is a "clear cut" violation in your opinion, in my opinion, in the opinion of the responding officers, the DA, or the Grand Jury?

Did he explain why if a jury feels that someone's actions were justified under the law they will find them "not guilty" rather than "guilty but not punishable", leaving them not only not punished for their violation but without a criminal record (of a conviction)?

TX_Jim wrote:may be this is the disconnect....I have not dfined violation...what is your definition of violation?

Same as yours.

The disconnect is that I believe that:

1) Only a jury can determine whether or not a given act is a violation of the law. As Chas said, anything prior to that merely represents someone's opinion.

2) When a jury determines whether or not a violation occurred, they do so by examining all elements of the applicable law, including any exceptions, justifications, or affirmative defenses that may apply.

3) In consideration of all of the above, the jury makes a detemination of guilty or not guilty. "Guilty" if the jury finds as a fact that the law was violated (since the defendent freely admits to the facts). "Not Guilty" if they find as a fact that the law was not violated.

Actually, the whole fallacy in the "act itself is a violation" argument is that only a jury can make a finding of a fact. Only a jury can make a pronouncement of a fact. The rest of us can have suspicions and/or opinions, but that's all we can have.

Just because you were charged doesn't mean you have committed a crime. Just because you were indicted doesn't mean you have committed a crime. Until a jury makes a finding, these things are all merely allegations.

So when you shoot someone who just robbed and shot you and is about to shoot you again, the correct answer to the questions, "Was the law violated?", and "Was a crime committed?", is, "Probably not, but we can't know unless and until a jury renders a verdict."

Not really helpful as a CHL class example IMO.

The differences between exceptions, justifications, and affirmative defenses can be explained to a class in a more straightforward manner.

frankie_the_yankee wrote:
So someone can stipulate that they pointed and fired their gun. That is a historical fact and if stipulated the jury will accept it as such. But whether or not it was a violation of the law is a judgement that only a jury can ultimately make.

TX_Jim wrote: I agree…and the jury will see that based on those facts and on statute, that the defendant was in violation…but they will find the defendant not guilty because he had just cause to violate law and act in self-defense…and therefore should not be punished.

The way I see it, the jury will find that the justification presented was adequate to establish that the actions were in lawful self defense and that no violation occured. So they will find the defendent not guilty.

txinvestigator wrote:Frankie;

It is important for students to understand the defense to prosecution.

I start with using a very simple example;

If I walk up and just punch you in the nose, what is that? The class always agrees that it is an assault.

I then change it, and say, "what if FIRST, you grab my shirt, pull your other fist back, and say thru clenched teeth, 'I'm gonna whip your tail.'? Before you can hit me, I punch you in the nose. What is that?"

I then get mixed answers. Most say it is self-defense, and I ask how they know. Seldom do any of them know why, they just "know it". I then tell them that we will learn the law, and apply the scenario in a bit, but for now, did my actions meet the definition of assault. Of course it does.

SO, how can I not be found guilty of assault. We look at 9.02 of the penal code § 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to
prosecution that the conduct in question is justified under this
chapter..

In the second example, your actions met the definition of assault.

But that is not exactly the same thing as saying that you violated the law, or committed a crime.

Because when the jury (if it goes that far) considers the elements you present in your defense to prosecution, they may well decide that your actions were within the law and find you not guilty.

When more than one section of the law applies, all relevant parts of the law must be considered before a jury can determine if the law has been violated.

At least that's how I see it.

I think we are close enough that I wouldn't go teaching a CHL class that if they point or shoot their gun at someone who had robbed them, shot them, and was apparently going to shoot them again, that they were:

a) violating the law,

or,

b) committing a crime.

Besides the fact that the scenario is such an extreme example of lawful self defense that it is ludicrous to think that shooting would violate the law, only a jury can ultimately make such a determination.

I think that using an example like that to illustrate the concepts of "exceptions" to the law, "justifications" for certain actions, and "defenses to prosecution" is more likely to create confusion among students than it is to instruct them.

txinvestigator wrote: If the jury finds the person committed the elements of the offense beyond a reasonable doubt, BUT the person presented evidence of a justification and reasonable doubt exists on the justification, a not-guilty verdict is entered. There would be no penalty phase.

I agree that if someone shoots someone else in self defense, and stipulates to that effect, they have admitted to committing the elements of an offense.

And at that point, a jury decides whether or not those elements constitute a violation of the law, taking into account any evidence of justification that the defense presents.

TX_Jim wrote: If I shoot some one in self-defense, I am not arguing the fact that a law was not violated…I am arguing the fact that I should not be punished because I had good reason.

Jim, if you shoot someone in self defense you are free to argue whatever you feel comfortable with.

But I must say that if I shoot someone in self defense, my attorneys will be arguing that I did not violate the law because my actions were fully justified under the law.

TX_Jim wrote: A jury is charged with two tasks. One, determine, based on the evidence whether a law was violated and two, if a law was violated, should a punishment be assessed based on the circumstances.

Where does this come from? I've never heard of a verdict of "guilty but no punishment". Even in insanity cases, the verdict is "innocent by reason of insanity".

TX_Jim wrote: I also assert that there was a violation of law. There are only two states we are referring. State One…the defendant did not draw a weapon and point it at the BG (no violation). State Two, the defendant drew a weapon and pointed it at the BG (violation). One of these two states of being is a clear cut violation of law.

Asserting something does not make it so. It seems like you're saying that something is a violation "just because". As Chas has stated, only a jury can decide whether a given act is a violation.

Otherwise, in a self defense case where the defendent admits to pointing and/or shooting his weapon, he would be stipulating that he was guilty, and the trial would only concern itself with determining a fair punishment. At the end, he would walk out of the courtroom with a criminal record.

Instead, he walks in presumed to be innocent, stipulates the facts, and the jury decides whether or not there is a violation and whether or not he is guilty of a crime.

TX_Jim wrote: Again…I agree that only a jury can find someone guilty or not guilty of a “Crime.� I also agree that in this case the jury would most likely find the defendant not guilty…of a crime.

OK.

TX_Jim wrote: I still assert that a “crime� has two parts…a violation of law and is punishable. In this case, the defendant will stipulate that a law was violated but he should not be punished because it was self-defense.

No. A defendent stipulates to the facts. He does not stipulate he violated the law. You say that only a jury can decide whether some act is a crime. But you seem to leave it to anyone to decide whether a given act is a violation.

"Asserting" it is not anough. Saying that some act is a "clear cut violation" of the law is not enough. In our system, there is a basic principle. The jury is the finder of facts. Nothing is a fact until a jury says it is. It doesn't matter how "plain" it is. Until a jury decides, everything is just an allegation.

So someone can stipulate that they pointed and fired their gun. That is a historical fact and if stipulated the jury will accept it as such. But whether or not it was a violation of the law is a judgement that only a jury can ultimately make.

TX_Jim wrote:

frankie_the_yankee wrote: Emphasis added.

I'm only re-quoting this message to point out that unlike most of us, Chas is a lawyer.

I ultimately agree with Chas that we are just playing word games here, however, as I pointed out ealier, just because he is a lawyer, does not make what he says correct or make it fact. As a lawyer, he should be able to walk through the scenario step by step and make his arguments stand on their own to support his conclusion and not use his credentials as a crutch to lend credence to the arguement. Being a lawyer, simply means he should be able to make a better argument on the subject matter than i can.

No Offense Chas...

I too would be very interested to see Chas' analysis of this.

BTW, I found something interesting in the part of the penal code that defines different types of criminal homicide, specifically murder.

§ 19.02. MURDER. (a) In this section:
(1) "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.
(2) "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.

.................................

(c) Except as provided by Subsection (d), an offense under
this section is a felony of the first degree.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.

Here, people convicted of murder can raise the issue of "sudden passion" arising from "adequate cause" in the punishment phase of the trial. Note that this is after guilt is determined by a jury. If the defendent proves adequate cause/sudden passion, the crime may be reduced from a 1st degree felony to a 2nd degree felony. But note that this does not affect whether the defendent is found guilty or not.

This is completely different from either an exception, a defense to prosecution, or a justification. Each of these concepts may be considered and argued during that part of the trial where guilt is determined - before guilt is determined. And if argued successfully, the defendent is determined by the jury to be "not guilty".

Charles L. Cotton wrote:

Photoman wrote:

ctxpta wrote:Do you break the law if the following happens??

Person trying to rob you shots at you. Their shot hits you. They appear to be taking another shot. You draw your weapon and shot the person. The person dies.

Did you commit a crime?

Did you break the law? Yes or no?

Was a crime commited? Yes or no?

This will be determined if and only if a jury makes a final decision. Yes, I know juries find a defendant "not guilty," rather than "innocent," but we just playing word games at this point.

Chas.

Emphasis added.

I'm only re-quoting this message to point out that unlike most of us, Chas is a lawyer.

TX_Jim wrote: I think the primary distinction is that the word Except can be applied to both the law and the penalty; Where as the word Justification can only be applied to the penalty…Meaning a law was violated…but we the people are not going to punish you because you had good reason.

I'm sure there is a distinction between the two terms, but this is not it. If justification was only applied to the penalty, a jury would find you guilty and then they or the judge would set a penalty of "nothing" because they found your actions justified under the law.

Instead, when a justification is accepted, the jury finds as a fact that you are not guilty. That doesn't strictly mean that the law wasn't broken. Only that it wasn't proven beyond a reasonable doubt.

This is just a guess on my part because IANAL, but I think that any distinction betwen the two terms is related to the standard of proof - i.e. what you need to do to establish that your conduct was an exception to the statute vs. what you need to do to establish that it was justified under the statute.

TX_Jim wrote: In a trial where self-defense is used as a defense, the defendant is not denying the fact that they violated law…the defendant is admitting to the violation of law but this is why I should not be punished or held accountable.

It kind of sounds there like you are stipulating your argument. I don't agree that admitting to your actions is the same as saying you violated the law. I would argue that those actions were within the law due to the circumstances.

One way of looking at it is that your act (of self defense) doesn't exist in a vacuum. Another indispensible part of the equation is the act(s) of the BG. In many, many situations, it is a violation of the law to shoot someone. But if the BG does certain things leading up to the shooting, such as pose an imminent and unavoidable threat, etc., then shooting him is justified under the law. So a jury returns a finding of "not guilty".

I think we should also keep in mind just what it is that you are found not guilty of. Certainly, it's not that you are not guilty of shooting the BG. You admit to that. What they find you not guilty of is violating the law.

TX_Jim wrote: Therefore the act of simply pointing a weapon is a violation of law....

I don't think so for the reasons I will point out below.

TX_Jim wrote: Now let’s look at the scenario. The laws do not say or imply that there are any exceptions to this law. The victim either the acted in violation of the law or did not act in violation law.

No "exceptions", but as you state below, there are "justifications".

TX_Jim wrote: I hope we can all agree that this act had to take place at some point in the scenario ...

Absolutely.

TX_Jim wrote: ...and agree that the act in itself is a violation of law…

No. Because that is the crux of the debate.

TX_Jim wrote: Penal Code 9.31 says that certain acts are “justified� if they rise to the extent of self-defense. The word justified in no way means or implies that a law was not violated. Again, I could not find where the word “justified� is defined in code and I take the usual meaning from the Merriam-Webster dictionary:

Main Entry: jus•ti•fy
Pronunciation: \ˈjəs-tə-ˌfī\
Function: verb
Inflected Form(s): jus•ti•fied; jus•ti•fy•ing
Etymology: Middle English justifien, from Anglo-French or Late Latin; Anglo-French justifier, from Late Latin justificare, from Latin justus
Date: 14th century
transitive verb1 a: to prove or show to be just, right, or reasonable b (1): to show to have had a sufficient legal reason (2): to qualify (oneself) as a surety by taking oath to the ownership of sufficient property.

To me, based on these definitions, justification does not mean a law was not violated but rather it means that the victim can prove that they were reasonable or had reason to violate the law.

I guess that I see it differently. I would say that if conduct is "justified" under the law, that the conduct did not constitute a violation of said law.

But if one wants to argue that, "..it is OK to violate a law under certain conditions, (where it's "justified") and you will be found 'not guilty' and there will be no punishment if you do.", as opposed to, "..the conduct does not violate the law..(because it is an "exception")", I would almost say that that is a distinction without a difference.

Either way, you can be charged. (The DA may not believe that your conduct falls under one of the "exceptions".) Either way, the correctness of your actions will be determined in the end by finders of fact (a petite jury).

I see no point in muddying up a CHL class trying to define how many angels can dance on the head of that particular pin. Heck, we have people running around who think they are committing a crime if they disclose to someone (other than an LEO) that they happen to be carrying. Compared to that, the kind of fine distinctions we are talking about might as well be on another planet.

[Do you remember the guy who posted that if asked by a non-LEO if he was carrying one should reply, "I am forbidden by law to answer that question."? How well do you think he absorbed the lesson on "violating the law" in his CHL class?]

IMO, judging by some of the questions that routinely pop up on this forum, the class time would be better served in teaching where guns can lawfully be carried and where they cannot, and when deadly force can be lawfully employed and when it cannot.

In the end, no matter what you do, whether you think your conduct was a "justifiable violation", or "an exception", if the cops don't agree, and if the DA doesn't agree and can convince the grand jury of the same, your conduct will be judged at trial, which is the only venue in our system where allegations can be determined to be facts.

srothstein wrote:
Frank,

The law defines criminal homicide instead of just homicide because not all homicides are criminal. This is just as you think it is.

OK. So we agree that there is such a thing as a homicide that is not a crime or offense.

srothstein wrote: The difference is that the example I refer to when I think of a non-criminal homicide is one where there is no criminal negligence. One example of this is when I am driving down a street and a child runs out in front of me. If I kill him in the accident, this is a homicide (death of a person by another person) that is non-criminal.

I see no difference at all between your example and that of a person acting in lawful self defense.

Your example isn't "automatically" non-criminal by a long shot. Were you speeding? Were you operating too fast for conditions, even if not speeding? Were you on a cellphone and distracted? Could you have stopped or swerved but failed to do so because you allowed yourself to be distracted? All these things are relevant facts that may ultimately have to be determined by finders of fact - a jury.

If a DA believes that you violated some traffic law in a way that contributed to the homicide, it may well be a "criminal homicide". In that case, a grand jury will have to true bill or no bill. If they true bill it, a petite jury will have to make its findings in a trial.

Now just because a DA believes it to be so doesn't mean that you did in fact break the law. It's up to the jury to decide that.

No difference at all.

What I think is that if the DA thinks the homicide was not criminal, it probably wasn't. If a grand jury thinks it was not criminal, it probably wasn't. And, if it gets that far, if a petite jury thinks it was not criminal, it definitely wasn't.

I know the cop was just speaking off the cuff, but look at what has been said in the aftermath of the two killings of burglars in 3 weeks by that guy in Dallas.

Police said Mr. Walton is allowed to protect his property. No charges were filed against him Sunday, though the case will be referred to a grand jury, police said.

"He's got a right to defend his property. What gives a stranger the right to go in and vandalize or burglarize his business?" said Dallas police Sgt. Gene Reyes. "He's within every legal right to do this."

I would say that that cop doesn't think the guy committed a crime when he killed the burglar.

srothstein wrote: As one example of why I think the crime was committed when the act happened, no matter what the jury says, look at the Sixth Amendment. It gives you rights in a criminal prosecution that is where the crime occurred (its wording). If the jury says it was not a crime, where does the trial have to take place?

It's interesting that they worded it that way, I'll admit. It does seem to presuppose a crime. But the 6th Amendment also makes reference to your right to, "... to be informed of the nature and cause of the accusation;....". So it almost seems to straddle both sides of it.

Also, the jury's determination of guilty/not guilty comes at the very end of the process. Prior to that, it is alleged that you committed a crime. The jury decides whether or not the allegation can be proven beyond a reasonable doubt (guilty) or not (not guilty).

srothstein wrote: It is a crime to violate the law.

Sure. But who are these "magic" people who can determine as a matter of fact that the law has been violated prior to due process? Are they cops, maybe the shift supervisor? Assistant DA's or DA's? Some might say a law has been violated, others might say not.

Is there a law that says that a law has been broken any time a police officer or DA, or whomever says it has been? If there is, I've never heard of it. I thought all they could do is act on probable cause and make allegations.

srothstein wrote: It is not always punishable under the law to commit a crime. Does that help you understand my position better?

Not really. Other than jury nullification, I believe that a finding of fact that a crime has been committed by some person or persons is always punishable. Not always punished maybe, but always punishable. (One possible exception is "innocent by reason of insanity". But that's not what we are debating here.) It is allegations that are not punishable.

srothstein wrote: And since I recommended that we lock this one, I am going to have to agree to disagree and not post in this thread again. At least I hope I can resist the temptation.

I see no reason to lock this thread. I find the debate quite interersting. I hope the mods don't lock it.

ctxpta wrote: To a few of you...saying you DID NOT commit a crime. Think of this. Will there or could there be a grand jury?

BTW...CHL Instructor/Level 3 combined Instructor/Security Licensed Manager

Of course a grand jury will review a shooting that results in a death.

But that does not mean that a crime has been committed. All it means is that the DA thinks that a crime may have been committed.

If the grand jury agrees, the case goes to trial. You could say then that the grand jury agreed with the DA and also thinks that a crime has been committed. But it has not yet been proven that a crime has been committed. If a grand jury finding of a "true bill" was equivalent to proof that a crime had been committed, there would be no point to holding a trial. We would already know the defendant was guilty.

At that point, a jury (a finder of fact) determines whether you are guilty of violating the law or not guilty of violating the law.

The idea that the law has automatically been violated, that one has committed a crime, in any and every shooting essentially amounts to a presumption of guilt, with the only way out being through jury nullification.

That's not the way the law works.

Until a jury has rendered its verdict, whatever the DA or anyone else thinks is no more than an allegation.

That's why we say "...so and so allegedly murdered.....".

Under the law, it's not a fact until a jury finds that it is true beyond a reasonable doubt.

If you are teaching otherwise in your classes, I would respectfully suggest you have some long talks with a few attorneys who practice criminal law and reconsider.

Finally, I'm still waiting for someone to tell me why the statute defines "criminal homicide" instead of just "homicide". I say that if all homicides are by definition criminal, the term criminal homicide is redundant and would not have been specified in the statute.

srothstein wrote:I think it might be time to lock this thread. We are all in agreement that the shooting was justified and that you should not be convicted.

The debate seems to be revolving around the word "crime". This is not a legal term and each of us seems to be defining it differently. To some of us, it is only a crime if you could be found guilty of it under the law. To others it is a crime if the act is proscribed by law, even if there is a defense. I think there have even been other definitions used in some people's minds where the differences can be more subtle than these two.

Actually, my main point is not how the word "crime" is defined. What I see as significant is that the penal code defines the term "criminal homicide". What possibly could be the reason for this, except to distinguish criminal homicide from some other, presumably non-criminal, type of homicide?

There would be no need to define criminal homicide unless there were another type or types of homicide that are not criminal.

When one person kills another, what you have is a homicide. Whether or not it is a criminal homicide remains to be determined, ultimately by a jury.