M Civ JI 174.02 Felonious and Intentional Killing - Definition

A person commits a felonious and intentional killing if [ he / she ]:

(a) death or in great and serious bodily injury, or

(b) commits an act that causes the death of another and commits the act intending that it result in knowingly creates a situation that has a very high risk of death with the knowledge that it would probably cause death or great and serious bodily injury and commits the act that causes the death of another.

However, the killing is not felonious if the person committing the act has a valid defense, such as:

(a) *(self-defense. [ Insert M Civ JI 174.11 Felonious and Intentional Killing: Self-defense—Definition ])

(b) *(defense of another. [ Insert M Civ JI 174.12 Felonious and Intentional Killing: Defense of Others—Definition ])

(c) *(legal insanity. [ Insert M Civ JI 174.13 Felonious and Intentional Killing: Legal Insanity—Definition ])

(d) *(accident. [ Insert M Civ JI 174.14 Felonious and Intentional Killing: Accident—Definition ])

(e) *(other defense).

The petitioner has the burden of proving that the respondent feloniously and intentionally killed [ name of decedent ].

The respondent has the burden of proving the defense of [ self-defense / defense of others / legal insanity / accident / (other defense) ].

Note on Use

*The court should select the defense or defenses that are applicable.

This instruction should be preceded by an instruction on the preponderance of the evidence standard as stated in M Civ JI 8.01 Meaning of Burden of Proof.

Comment

See MCL 700.2803. Under both the current statute, MCL 700.2803(6) enacted as part of the Estates and Protected Individuals Code that took effect April 1, 2000, and its predecessor, MCL 700.251(6), a final judgment of conviction conclusively establishes a felonious and intentional killing, but in the absence of a conviction the determination of whether there has been a felonious and intentional killing is made using a preponderance of evidence standard. In Metropolitan Life Ins Co v Reist, 167 Mich App 112; 421 NW2d 592 (1988) decided under the predecessor statute (MCL 700.251), the appellate court decided that summary disposition was improper where there were genuine issues of material fact about motive, opportunity and credibility of the wife who claimed her husband’s death was accidental. Cases decided under common law prior to the enactment of the predecessor statute include Goldsmith v Pearce, 345 Mich 146; 75 NW2d 810 (1956); Budwit v Herr, 339 Mich 265; 63 NW2d 841 (1954); and Garwols v Bankers Trust Co, 251 Mich 420; 232 NW 239 (1930).

See People v Dykhouse, 418 Mich 488, 495; 345 NW2d 150 (1984) for a discussion of first and second-degree murder. See also the Commentary to CJI2d 16.5 Second-degree Murder.

History

M Civ JI 174.02 was added February 1986. Amended December 1, 2002. ​