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Good discussion on this ctxpta.
Thank you for posting.

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.

Frank,

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

The reason I think you are actually debating the word crime is in your last post. You say the DA thinks a crime was committed. The Grand jury thinks a crime was committed. Then you change to the jury finds you guilty or not guilty of violating the law. This implies to me a different definition of a crime.

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

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.

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.

I am not a lawyer but I am going to take a stab at this (no pun intended).

I will take an approach of separating the act from the scenario. The actions taken in the OP is that the victim draws his/her firearm and points it at a human target. The sole act of pointing a firearm at a human being is a threat of use of deadly force and is, at the very least, a violation of penal code as defined by PC 22.01 ASSAULT and a class a misdemeanor is punishable by law. Please note that I used the word violation and not crime. I could not find a definition for the word “crime� in the penal code (if someone knows where it is defined please tell me), and therefore when a word is not defined it takes on the “usual� meaning. According to the Merriam-Webster dictionary “Crime� is defined as follows:

Main Entry: crime
Pronunciation: \ˈkrīm\
Function: noun
Etymology: Middle English, from Anglo-French, from Latin crimen accusation, reproach, crime; probably akin to Latin cernere to sift, determine
Date: 14th century
1: an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law; especially : a gross violation of law

Therefore the act of simply pointing a weapon is a violation of law and according to definition....it is a "crime" onto and in itself. Please note I have stayed away from the words homicide and etc. as I believe it truly takes away from the intent of this discussion. So to recap…at this point…there has not been a homicide and the victim has already violated one law.

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. I hope we can all agree that this act had to take place at some point in the scenario and agree that the act in itself is a violation of law…but I digress. 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.

Small recap…the victim violated law when he/she pointed the firearm at another human being. The act is justified by law but does not erase the fact that a law was violated it simply justifies it.

Further exploration…When a violation of law is justified, the people simply make a concession on punishment not a concession on law.

In conclusion, given the scenario in the OP, A law was violated under justifiable conditions. The victim will not be held accountable or punished for violated the law under those conditions.

I would suggest to the original poster to re-word the question to “Did you violated law?� I believe this simple change in words would reduce the amount of debate.

Let me clarify my conclusion. According to the definition of "crime"... "an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment."

The definition clearly indicates (because of the word "and") that two conditions must be met for a "crime" to occur. One a violation of law, and two, the violation must be punishable.

Back to the OP:

1) A law that is punishable was violated.
2) The circumstances renders the violation justifiable and therefore not punishable.
3) Although a law was violated, a crime did NOT occur because the actor can not be punished for the violation due to circumstances.

I believe this theory holds true though out the entire scenario...up to and including the act of taking somone's life.

That is my Final answer Regis!!!! Am I a millionaire now?

ctxpta wrote:BTW...CHL Instructor/Level 3 combined Instructor/Security Licensed Manager

I'm not sure this needs to be added into the mix. If you feel the need to add your credentials to the argument then this indicates to me that your arguments are not strong enough to stand on their own merit. This is a common fallacy when debating (read “With Good Reason.�) I do not buy into your theory any more or less because of your credentials, however, by adding your credentials i will take a closer look at your arguments to see if the stand on their own merit.

I guess I get a little annoyed when people say things like "Well, I'm a laywer and therefore i know the law", or "I'm an instructor and therefore i know more than you."

Sorry....will get off my soap box now.

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.

If we look at Texas Code we can find many examples where the word Except or Exception is used. In those cases lawmakers are specifically allowing an act that is contradictory to the law. In those cases where the word except is used, the word except changes the meaning or intent of the law itself and/or penalties. Had lawmakers wanted self-defense to be an exception to assault they would have used the word except or exception within that code. However, this is not the case, it is clear cut…the law states the threat of use of deadly force is a violation of law…there are no exceptions. The lawmakers do in fact use the word except in PC 22.01 for which they intend to alter the penalties for a given situation (see below).

§ 22.01. ASSAULT. (a) A person commits an offense if the
person:
(1) intentionally, knowingly, or recklessly causes
bodily injury to another, including the person's spouse;
(2) intentionally or knowingly threatens another with
imminent bodily injury, including the person's spouse; or
(3) intentionally or knowingly causes physical
contact with another when the person knows or should reasonably
believe that the other will regard the contact as offensive or
provocative.
(b) An offense under Subsection (a)(1) is a Class A
misdemeanor, except that the offense is a felony of the third degree
if the offense is committed against:

(1) a person the actor knows is a public servant while
the public servant is lawfully discharging an official duty, or in
retaliation or on account of an exercise of official power or
performance of an official duty as a public servant;

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. The previous statement has a totally different connotation then the people saying no law was violated period.

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.

If you did not violate law one would just say, “I was not the one who did this…it must mistaken Identity or something.� If a violation occurred, then one would say, “Yes, I shot him but I did it in self-defense� and therefore should not be punished. Again there’s a big difference in connotation. Again…I agree that no “Crime� was committed as the scenario alters the punishment portion and therefore does meet both requirements to be a crime.

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.

Why would you have to justify something you did not do?

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.

If a tree falls in the woods and nobody is there to hear it, does it still make noise?

If someone breaks the law and doesn't get caught, was a crime committed?

Photoman wrote:If a tree falls in the woods and nobody is there to hear it, does it still make noise?

Proven Laws of physics says it does...but to prove that it did is a different story.

Photoman wrote:If someone breaks the law and doesn't get caught, was a crime committed?

Depends on the crime...if i wake up one morning to find that my truck was stolen....but they never catch the BG...it does not erase the fact that someone stole my truck.

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.

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...

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".