Doing Research For a Book

[authorso]

I hope this is allowed and I apologize in advance if it's not. I am an author writing my first novel and I need your help. I need to know what happens when someone is shot and killed by accident. Here is the scenario: A suspect is attempting to kidnap the victim. The suspect walks into the victim's home in and attempts to kidnap the victim. While trying to stop the suspect from taking the victim, a third person shoots at the suspect but hits the victim instead. The victim later dies. My question is: Can the person who shot the gun be charged? If so what would the charges be? I was under the impression that it would be Negligent Homicide but one of my beta readers tells me that no charges should be brought up. Thank you!

 

[Taxing Matters]

If so what would the charges be? I was under the impression that it would be Negligent Homicide but one of my beta readers tells me that no charges should be brought up. Thank you!

That depends greatly on the law of the jurisdiction in which it takes place. A third person shooting a gun to prevent a violent crime still must use care in firing the weapon. In my state, criminally negligent homicide is defined in the case law as an unintentional killing caused by the defendant's failure to perceive a substantial and unjustifiable risk that a certain result will occur. So in my state, shooting at two people who are struggling may well be criminally negligent homicide because a jury may well conclude doing that presents a substantial and unjustifiable risk of hitting the wrong person. The shooter should know that and not take the shot.

 

[adjusterjack]

You're going to have to flesh out the details.

The suspect walks into the victim's home in

How? Door unlocked? Door open? Rang bell and was let in? Need more details on how the kidnapper got into the house.

attempts to kidnap the victim.

How? Gunpoint? Knifepoint? Grabs victim's arm and says "Come with me"? Details count.

While trying to stop the suspect from taking the victim, a third person shoots at the suspect but hits the victim instead.

See TM's note.

 

[authorso]

You're going to have to flesh out the details.



How? Door unlocked? Door open? Rang bell and was let in? Need more details on how the kidnapper got into the house.



How? Gunpoint? Knifepoint? Grabs victim's arm and says "Come with me"? Details count.



See TM's note.

The suspect gets in the house forcefully. The person who opens the door is knocked out which allows him to walk inside. This is a two story house and the suspect is now on the second floor near the stairs holding the distraught victim by the hand. The shooter is pointing the gun at the suspect. The suspect then pulls the victim down the stairs with him and they tumble down. This is when the shooter fires at the suspect but stikes the victim and the suspect gets away. And BTW, this all happens in the state of California

 

[Taxing Matters]

And BTW, this all happens in the state of California

And that is why the state matters a lot. California does not have a crime of criminally negligent homicide. It has first and second degree murder, and involuntary and voluntary manslaughter. (I've left out the DUI related homicide offenses.)

Involuntary manslaughter occurs when the defendant kills another person without malice or an intent to kill but with conscious disregard for human life. Voluntary manslaughter occurs when the defendant kills another person in the heat of quarrel or passion (e.g. walking in on your spouse having sex with someone else and, in the heat of passion, killing your spouse's lover). Second degree murder is a willful killing of another that is not delibrate and premeditated; basically any murder that is not first degree murder. First degree murder is one that is willful, deliberate, or premediated and includes felony murder. Felony murder is when a death occurs while the defendant is committing certain specified felonies. While what you describe might fall under second degree murder, California provides two relevant defenses:

A. Where the defendant shoots someone who has forcibly entered his/her residence and the defendant shot the intruder knowing or having reasons to know the intruder entered forcibly and unlawfully. The problem with this defense is that it seems that it only justifies the killing of the intruder, not another occupant of the home. See Penal Code 198.5.

B. Homicide is also justified in the following circumstances:

(1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.​

​

(2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein.​

​

(3) When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.​

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(4) When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.​

​

Penal Code 197. Arguably even though the person in your story accidentally hit the wrong person, the shooting would still be justified under one or more of the provisions I listed in B.

In short, I think the person here would have a better shot at avoiding conviction on some homicide related offense under California law than under the law of my state since it lacks a crime like criminally negligent homicide, which would be the more natural fit for this.

 

[cbg]

Another writer here. Authorso, what would you like the answer to be? What answer would work best for the story?

 

[adjusterjack]

The suspect gets in the house forcefully. The person who opens the door is knocked out which allows him to walk inside. This is a two story house and the suspect is now on the second floor near the stairs holding the distraught victim by the hand.

This scenario seems to imply a relationship between the kidnapper, victim and shooter. Not a criminal conducting a home invasion and thinking "Oh, I'll just go upstairs on the chance that there is somebody there that I can kidnap."

What is the relationship?

I think the person here would have a better shot at avoiding conviction on some homicide related offense under California law

But could face a wrongful death lawsuit based on a allegation of negligence. Certainly wasn't very prudent to fire while the two people were tumbling down the stairs.

 

[PayrollHRGuy]

I'm with CBG on this one. Figure out what you want the outcome of the shooting to be then figure out how to get there.

 

[quincy]

The author of a fictional novel also has creative license. Real life can be (and often will be) altered to fit the narrative. That is how murder investigations in television shows are nicely tailored to fit in a 60-minute time slot.

 

[PayrollHRGuy]

Try 42 minutes if you take out the commercials.

 

[quincy]

Try 42 minutes if you take out the commercials.

Who would want to take out the commercials?

 

[bcr229]

Does CA not have a felony murder law? In some states the kidnapper could be charged with the death of the death of the victim even though someone else pulled the trigger, because the shooter acted while trying to stop a crime.

Now that said, shooting at people falling down the stairs borders on felony stupid.

 

[Zigner]

Who would want to take out the commercials?

I would not. I love commercials. I live for commercials. I use my DVR to skip all program content so that I can watch the commercials exclusively.


(Today IS opposite day, right?)

 

[Taxing Matters]

Does CA not have a felony murder law?

It does. I mentioned the felony murder rule in my earlier reply. But I didn't go into any detail on it because it is not the kidnapper's charges that the OP asked about. The OP asked about whether the shooter — an apparent occupant in the home and not part of the alleged kidnapping — would face any charges for the shooting.

 

[Taxing Matters]

I would not. I love commercials.

Well, a lot of people do watch the Superbowl for the ads.