Section 14.58 Excusable Homicide

• Library: Criminal Practice 2012 Supp

2. (§14.58) Excusable Homicide

Section 563.070.1, RSMo 2000, provides that conduct that would otherwise constitute a crime under Chapter 565, RSMo (offenses against persons) “is excusable and not criminal when it is the result of accident in any lawful act by lawful means without knowingly causing or attempting to cause physical injury and without acting with criminal negligence,” which is defined in § 562.016.5, RSMo 2000. The defendant has the burden of injecting this issue, § 563.070.2, and when so injected, the burden shifts to the prosecution. There is no approved MAI-CR 3d instruction submitting this defense. The issue of accident goes to the defendant’s state of mind and can generally be addressed through a converse instruction. See §14.12 above for further discussion.

Under the former law, before the adoption of the Criminal Code, homicide was excusable if it was committed by accident or misfortune:

· in lawfully correcting a child or employee, or in doing any lawful act by lawful means, with usual and ordinary caution, and without unlawful intent; or

· in the heat of passion, upon any sudden or sufficient provocation, or upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel and unusual manner.

Common-law excusable homicide was recognized as well. At common law, it was excusable when it...