DO you break the law when???

[srothstein]

As a peace officer, a TCLEOSE certified instructor, and the training coordinator for a law enforcement agency, let me take a stab at this question. It is a great one for getting students to understand the law.

First, we have to define a non-legal term here. What is a crime? If we go with the normal definition, a crime is a violation of the laws of the state. If you define this word differently, you may come up with a different answer than I did.

Given the situation as described, you have committed a crime. You have committed the offense of Murder in violation of Penal Code section 19.02. Please note that this chapter reads as follows:

(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.
(b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
(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.

It is clear to me that you have intentionally killed a human being, thus have committed a crime as shown above. Now, were you able to do so legally? Yes. There is a justification of self-defense and we all agrree it applies. But what most of you have forgotten is that justification is a defense to prosecution, not an exception from the law. Penal Code chapter 9.02 shows us this as follows:

It is a defense to prosecution that the conduct in question is justified under this chapter.

So, you have committed a crime and can be arrested and charged for it. You should be found not guilty by virtue of the justification defense, but you did commit the crime.

And when you think about it, we all know that this is true since we can all think of examples of people who justifiably used force and were still charged and tried. We even talk about having a lawyer available to defend us if we get involved in a shooting. If it was not a crime, could a lawyer defend us from the police?

[frankie_the_yankee]

If you're found not guilty, doesn't that mean that in the collective judgement of the finders of fact (the jury) that you did not commit a crime?

Plus, all one is trying to do is stop the attack. One is not intentionally trying to kill the BG.

Now what is intentional is the use of deadly force. So one would be aware that their actions could cause the death of the BG. But that is not the same thing as intending to cause that death.

I believe this is the line of reasoning that results in many people who act in lawful self defense not being charged and/or being no billed. The cops, DA, and/or grand jury looks at it and decides that no crime was committed.

So I think it is no where near clear that a crime has been committed in the scenario described. In fact, I would say that it is a lot more clear that a crime wasn't committed (except by the BG of course).

If I wanted to put a thought provoking example before a self defense class, I would come up with one that was a lot more ambiguous than the one described in the OP.

You're robbed, shot, and about to be shot again, and the "question" is are you committing a crime if you shoot back? Please. A 3 year old could answer that one IMO.

[SC1903A3]

Strict definitions aside, I understood his question to mean: Is the act of taking a life in self defense a criminal act? I believe that act in and of itself is criminal. What comes into play after the act is committed is whether of not the act was justifiable.

[seamusTX]

If you're found not guilty, doesn't that mean that in the collective judgement of the finders of fact (the jury) that you did not commit a crime?

This is a narrow semantic point, but being no billed by a grand jury or found not guilty by a petit jury means that the state did not prove that you committed crime.

In some cases you could be proven innocent. For example, if, at the time the crime occurred, you were in government custody or in surgery, that would pretty much prove it. However, that sort of thing is rare.

- Jim

[Liberty]

If I wanted to put a thought provoking example before a self defense class, I would come up with one that was a lot more ambiguous than the one described in the OP.

You're robbed, shot, and about to be shot again, and the "question" is are you committing a crime if you shoot back? Please. A 3 year old could answer that one IMO.

and the 3 year old would be wrong.

If you go back and read the original post you will find that it wasn't in a self defense class but rather a CHL class. A CHL class may briefly cover some topics like firearms safety, conflict resolution, and self defence techniques, but the heart guts and bulk of the class and the test is about the law. As we see from all the discussions on this forum the law is a complex and often confused topic.

My instructor posed the same question.

From that question he was able to unfold the law in an efficient manor and explain how how the laws involving defensive shooting were were derived. Much like srothstein had posted. The question wasn't asked in class to convince students they were going to jail in a defencive shooting, but to explain how a defensive shooting is legally justified, and how a case will be defended by a lawyer. Knowing this, a student is armed in how he might behave and what he might say. Steve explained it so well on why an instructor would take this approach.

As a peace officer, a TCLEOSE certified instructor, and the training coordinator for a law enforcement agency, let me take a stab at this question. It is a great one for getting students to understand the law.

First, we have to define a non-legal term here. What is a crime? If we go with the normal definition, a crime is a violation of the laws of the state. If you define this word differently, you may come up with a different answer than I did.

Given the situation as described, you have committed a crime. You have committed the offense of Murder in violation of Penal Code section 19.02.

[frankie_the_yankee]

If I wanted to put a thought provoking example before a self defense class, I would come up with one that was a lot more ambiguous than the one described in the OP.

You're robbed, shot, and about to be shot again, and the "question" is are you committing a crime if you shoot back? Please. A 3 year old could answer that one IMO.

and the 3 year old would be wrong.

And we will have to agree to disagree.

I do not think that any shooting is automatically a crime.

I think that any shooting may be a crime. And in our system we leave it ultimately to finders of fact (juries) to determine whether someone is guilty or not guilty of a crime that they may be accused of.

If you are guilty of committing the crime, you do the time.

If you are not, you don't.

The jury doesn't decide that you committed the crime but that it is OK. They decide whether or not you are guilty.

I do not believe that a homicide committed in lawful self defense is equal to "murder". Neither does the dictionary. And neither does the penal code. If all homicides really were "criminal homicides", the penal code would not need to define and use the term "criminal homicide". Using just the word homicide itself would be the exact equivalent.

If you shoot and/or kill someone, you may be arrested and charged because the authorities suspect that you may have committed a crime. If the case goes to trial, you may invoke whatever "defenses to prosecution" that are applicable. If the jury agrees that these defenses are valid, they find you not guilty. This means that they could not establish beyond a reasonable doubt that you in fact committed a crime.

Yes, you may have. But they did not judge that the state proved it. Hence a not guilty verdict means that they don't know whether a crime was committed or not. It follows logically that a crime may well not have been committed.

But we know for sure that the BG is dead. His dead body establishes that fact beyond all doubt. So we know that a homicide happened. And we also know for sure that you shot him, because you freely admit it. What we don't know (yet) is whether or not it was a "criminal homicide".

Ultimately, you are found "not guilty". So here we have an instance where a BG turns up dead, you shot him, and a jury was unable to determine beyond a reasonable doubt that a crime was committed. So his death may have been the result of a crime, and it may not have.

Note that I am not saying that the jury finds you "innocent". I know that is not how the system works. But a finding of not guilty means that there was reasonable doubt as to whether you were guilty. And since in a case like this you freely admit to doing the essential element of the offense (i.e. killing the BG) a finding of not guilty means that there was reasonable doubt as to whether whatever you did was a crime.

If there is doubt as to whether your actions constituted a crime, it is clear that they may not have.

So I think the scenario is a poor example for teaching purposes both for the reasons cited above and for the fact that it is such a blatent example of lawful self defense that I fail to see anything about it that is remotely instructive.

No one in TX will ever be indicted, convicted of a crime, or successfully sued, for shooting a robber who had already shot him once and was getting ready to shoot him again.

So what's to learn there?

[frankie_the_yankee]

Strict definitions aside, I understood his question to mean: Is the act of taking a life in self defense a criminal act? I believe that act in and of itself is criminal. What comes into play after the act is committed is whether of not the act was justifiable.

I do not believe that every taking of a human life is a criminal act. And I don't think the penal code is written that way either. Otherwise, the code would not bother to define "criminal homicide". The only reason for doing this is to distinguish criminal homicides from other kinds of homicides (i.e. non-criminal homicides).

If someone goes into a day care center and starts methodically executing babies, and you shoot him and stop his horrible attack, no one on Earth would call what you did a crime.

[srothstein]

If you're found not guilty, doesn't that mean that in the collective judgement of the finders of fact (the jury) that you did not commit a crime?

As was previously posted, a jury does not decide if you committed a crime, but if the state has proven that you are guilty of an offense against the laws of the state. They may find you not guilty because you have conclusive evidence you did not do it (such as the Perry Mason/Legally Blond trick of getting another person to confess while on the stand). They may decide you are not guilty because the state did not prove beyond a reasonable doubt that you did the act (as in many cases), they may decide you are not guilty because the law said the act was justified (as in the case with the CHL in Austin and the car burglar), or they may decide you are not guilty because the law is wrong and should not apply (jury nullification).

Compare it to the case of a robber who is never arrested. Just because the police cannot solve it to make a case, did the person commit a crime when he robbed the store?

In most cases, the law would say the crime is in the act committed, not in what happens afterwards. We even use this as the common definition of unsolved crimes.

Another way to look at it is to see if the reason you could do your act was if it was a defense or an exception. It is not a crime for a CHL to carry a pistol on or about his person because it is an exception to the law of unlawfully carrying. It is a crime to shoot someone, even though you may have a defense of justification.

What the three year old would answer, and where some of the posters here may be having a problem, is in the morality of the act. Is it wrong to shoot someone to defend yourself? I don't think so, and I am willing to bet that the majority, if not all, of the posters in this forum would agree with me. Is it illegal? Yes.

Never confuse the law with morality or right and wrong. Also do not confuse it with fairness or justice. While we like to think we strive for fairness and justice and morality through the law, the law is just the law and not necessarily any of the above.[/quote]

Plus, all one is trying to do is stop the attack. One is not intentionally trying to kill the BG.

Now what is intentional is the use of deadly force. So one would be aware that their actions could cause the death of the BG. But that is not the same thing as intending to cause that death.

Actually, it would still be murder. The second clause on murder is that you intended to cause serious bodily injury and committed an act dangerous to human life which caused a death. If you wanted to argue you did not intend to injure at all, and were just trying to get him to stop the attack, you could still be charged with various other felonies, possibly aggravated assault or deadly conduct. Deadly conduct is just pointing a firearm in someone's direction, with the felony upgrade if you fired it. It does not have to be aimed at him or the intent to injure anyone.

All of this is debating which crime, not if you committed a crime at all though.

[frankie_the_yankee]

Where is the mens rea of a person shooting (to stop) someone who is methodically executing babies in a day care center? Isn't mens rea an element of a crime?

I still maintain that if there wasn't some difference between "criminal homicide" and "homicide" in general, the statute would not have used the term criminal homicide. The term "homicide" itself would have been sufficient.

"Homicide" is a general term that has the (dictionary) meaning of killing another human being. "Criminal homicide" is more specific. I do not believe the legislators used that term by accident.

Criminal homicide is defined as an offense in the statute. Where is there a definition (in the statute) of "homicide"?

[Photoman]

We are trained to shoot to stop, not shoot to kill.

I don't think this qualifies as "intentionally or knowingly cause(ing) the death of an individual" if the person shot ends up dead.

[txinvestigator]

This is an important question for understanding how a Defense to Prosecution works in Texas. Self defense in Texas is a Defense to Prosecution.

Some of us are getting caught up in the word "crime". In Texas, the penal code makes criminal acts out of proscribed conduct. If you engage in proscribed conduct, and you have committed the elements of the crime you can be charged.

There are several defenses to said charge;

A) Not guilty because I did not commit all of the required elements. Typically the person is tried and the defense misses a required element. Like a DWI case where they can't establish you were operating a motor vehicle. Since operating a MV is a required element of DWI, you would be not guilty of the crime.

B) Not guilty because of a procedural or evidentiary issue. For example, for DWI the traffic stop is ruled illegal. That means the evidence obtained later is inadmissible, and you are found not-guilty. Did you commit the crime?

C) Not guilty by reason of insanity- You do not dispute the facts. You admit to or stipulate to the elements of the crime, but are found not guilty by reason of insanity.

D) Not guilty due to justification- You committed the proscribed acts. In our Homicide case, that being Murder. The elements of murder that are relevant to this case are;

1) A person (that is you)
2) knowingly
3) causes the death of an individual;

Knowingly is defined; (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the
circumstances exist. A person acts knowingly, or with knowledge,
with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.


All the prosecution has to prove is that you met those 3 elements. He is not required to even mention that a possible defense exists. In fact, if the defense is brought up in court, the jury cannot consider it unless facts are presented in support of the defense.

In our scenario, the victim committed the proscribed acts. It is up to him to be able to PROVE his conduct met the justification. He probably would not even be arrested, but he could be.

I think the term "crime" confuses the question.

The person is not claiming the did not commit the illegal act, nor or they claiming that the prosecution failed to get over reasonable doubt. You are admitting to the act, but claiming a legal justification to the act.


It is a Defense TO Prosecution, not a Defense FROM Prosecution.

[frankie_the_yankee]

The person is not claiming the did not commit the illegal act, nor or they claiming that the prosecution failed to get over reasonable doubt. You are admitting to the act, but claiming a legal justification to the act.

Yes. And if you can establish (to the required standard of proof) that the act was in fact legally justified, then what you did was not "illegal" nor was it a "crime". So the jury finds you "not guilty" of the crime with which you are charged.

If you are charged and no billed, it's obvious that the grand jury did not think that your actions were criminal or illegal.

If you are not charged, it's obvious that the cops and/or the DA either do not think you committed a crime themselves or do not think they have any reaonable chance of proving that you did.

It is a Defense TO Prosecution, not a Defense FROM Prosecution.

I fully understand and agree.

What I am saying is that if you kill another person, you may have committed a crime or you may not have. Responding officers, DA's, grand juries, etc. may well bring charges if they think that what you did was illegal or that it might be illegal.

But it's not automatically illegal. If it was, and you admitted to doing it, there would be no need for a trial. You would just go directly to jail.

Also, there would be no need for the statute to define the term "criminal homicide". The simpler and more general term "homicide" would be adequate.

At some point, if it goes that far, a finder of fact (jury) may determine that your actions were justified (in which case they were not illegal) or not, in which case they find you guilty.

[txinvestigator]

The person is not claiming the did not commit the illegal act, nor or they claiming that the prosecution failed to get over reasonable doubt. You are admitting to the act, but claiming a legal justification to the act.

Yes. And if you can establish (to the required standard of proof) that the act was in fact legally justified, then what you did was not "illegal" nor was it a "crime". So the jury finds you "not guilty" of the crime with which you are charged.

If you are charged and no billed, it's obvious that the grand jury did not think that your actions were criminal or illegal.

If you are not charged, it's obvious that the cops and/or the DA either do not think you committed a crime themselves or do not think they have any reaonable chance of proving that you did.

We agree Frankie. It is important for people to understand though, that the defense is for otherwise illegal acts. The murder was committed, it was just justified. It is different from an exception to the law, or even an affirmative defense.

It is a Defense TO Prosecution, not a Defense FROM Prosecution.

I fully understand and agree.

What I am saying is that if you kill another person, you may have committed a crime or you may not have. Responding officers, DA's, grand juries, etc. may well bring charges if they think that what you did was illegal or that it might be illegal.

But it's not automatically illegal. If it was, and you admitted to doing it, there would be no need for a trial. You would just go directly to jail.

Also, there would be no need for the statute to define the term "criminal homicide". The simpler and more general term "homicide" would be adequate.

Here we disagree. The acts ARE illegal, unless you meet the justification AND can prove it.

OJ was found "not guilty". Does that mean he did not kill Ron and Nicole?

[Photoman]

I know from research that the great majority of persons shot with a handgun do not die.

How can it be said that I "knowingly caused the death of the individual" when I have no way of knowing if they will die or not? I am not shooting to kill. I am shooting to stop their behavior.

[txinvestigator]

I know from research that the great majority of persons shot with a handgun do not die.

How can it be said that I "knowingly caused the death of the individual" when I have no way of knowing if they will die or not? I am not shooting to kill. I am shooting to stop their behavior.

Read the definition of "knowingly".