This hypothetical case has been discussed and argued since Fuller published it in 1949.See, http://www.earlham.edu/~peters/writing/cse.htm#otheropinions.
How would you decide the case? On what authority? How would you describe your approach?
I would cut and paste my paper from my third year jurisprudence class, but I don’t want to tempt some poor overworked soul into plagiarism.
How would you describe the approach you took?
That might have come off as more abrubt than I meant it, so let me add a smiley:
There. Let me see if I can go print a copy of my old paper so’s I can discuss.
Well, it figues that I can’t find it, and I’m starting to fear that I may have erased it from my computer. Man, that would suck.
Best I can remember, I went with the argument that had been made in the hypothetical law schools but had never made it into their case law, that the killings were not “willful.” Justice Keen’s mechanical jurisprudence would say that this is ridiculous and that the statute clearly makes no exception of any kind. I countered that the law doesn’t make exception for the hangman who is going to hang the spelunkers, either, or for that matter, for the judges that act as their accomplices under the law of parties, so if Judge Keen insists on a mechanical reading of the law without regard to consequences, he’d better be prepared to be hanged himself.
The facts of the case as presented are not sufficient to prove murder beyond a reasonable doubt (dunno if the Commenwealth has such a clause, though), because I am not convinced that the Speluncean (sic?) Explorers specifically wanted Whetmore to die.
(An aside: a literal reading of N. C. S. A. (N. S.) § 12-A would make the Commonwealth guilty of murder every time it executed someone. That is obviously not the intention of the law.)
(Another aside: If not guilty of murder, the Speluncean Explorers were at least idiotically negligent for not planning for such an emergency in the first place.)
Sure it does. One of the usual elements of murder is that the killing must be unlawful. Because the executioner acts under authority of law, the killing is not murder.
The jury found, “The throw went against him, and he was then put to death and eaten by his companions.”
Under most definitions of the term willful, the defendant need only act knowingly and voluntarily. The defendant is not required to intend the consequences.
When one puts someone to death, one willfully kills that person. It seems you are trying to make Pravnik’s argument. But what you said is not the same thing.
The willfulness argument usually attacks the voluntariness of the defendant’s actions. In other words, **Pravnik **might argue to the court that the defendants had no choice but to do what they did, and therefore, their actions were not voluntary. The rebuttal might be that voluntary in the sense intended includes all actions that the defendant could physically avoid doing. And the argument goes on.
This statute has no such provision. Are you reading one into it? Based on what?
Yes, that’s the facts, but is it murder? (Perhaps my understanding of this case is incorrect, but aren’t we trying to determine if that constitutes murder?)
It’s not like they can’t be retried, right? (Or, if the Commonwealth has some sort of Double Jeopardy clause, just charge them with criminal negligence and punish them that way.)
And of course there’s the issue of whether the “willful killing” clause applies to the Commonwealth in the execution of the defendents.
- Yes. Your job as a justice would be to decide whether the facts, as found by the jury, make the defendants guilty of murder according the statute. Simply answering, “no,” takes all of the interesting stuff out of the exercise, IMO.
If your argument is that the killing was not willful because they didn’t intend to kill him (presumably because they were ok with eating him alive), you unleash all sorts of less persuasive defenses:
a. Joe is fleeing police. Wants to escape. Officer grabs car door. Joe swerves car in attempt to escape officer--does not want to kill him. Officer dies. Joe did not intend the officer's death; he only intended the actions that caused it.
b. Mother drowns baby because she can't stop its crying. Didn't intend to kill the baby, just to silence the crying.
- If you read the case carefully, I think you will realize that you don’t need more facts. It is safe to assume that nobody wanted him dead. The motivation for the killing was sustenance. But that begs the question. It is equally clear that they intended for him to die. In fact, it seems undisputed.
This alone is sufficient evidence to support the conclusion on appeal, that the defendants planned to kill and eat one of them, and that Whetmore’s death resulted from this plan.
You want to raise a legal issue–not a factual one: Is this murder? Is it murder to kill someone when you are only doing so because you will all starve if you don’t?
So how would you characterize your argument?
Is willfulness an issue for the jury?
I guess I’m too used to thinking in terms of U.S. law, which can charge someone with manslaughter instead of murder. The Commonwealth doesn’t seem to have such a thing. All “willful killing” is equated with murder. (Which makes no sense, because the Commonwealth has capital punishment and in all probability goes to war as well.)
This is an issue that is key to Fuller’s own legal philosophy. Fuller and Hart had a famous debate about a case involving a law that says: “No Vehicles are permitted in the park.” I won’t go into it here, but if you poke around on the Internet, you will get some insight about the reason Fuller did this.
(1)N Yes. (2) The common law, the UCCJ, and the statutes of most of the states in the nation.
Good enough?
So were the Spelunkers pardoned?
BTW: can a jury really “punt” by delivering a “special verdict” like that? They agreed on the facts but only provisionally found the defendents guilty, saying that it was up to the court to declare whether the findings met the technical definition of guilt under the statute.
Well
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It’s up to you to decide whether to read exceptions into the statute.
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There is no such thing as a common law crime in the United States, though we are talking about Newgarth here. The statutes of most states are different from this one, which actually cuts against your argument. Newgarth could have adopted a statute like that, but did not.
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In most cases, the lawful/unlawful distinction is conclusory. If the court finds the defendants not guilty, then their conduct was lawful, if it convicts, then it was unlawful.
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That said, it is certainly a valid approach to read the statute along with its intended purpose. Indeed, that was part of Fuller’s approach.
Read further down.
The justices were divided, so the conviction was upheld. The Spelunkers were executed.
Dunno about the US, but apparently, in the Commonwealth, yes.
(Time to rise in rebellion against our evil nitpicky overlords, perhaps? :D)
The special verdict actually happened in a case that every law student knows: R. v. Dudley and Stephens.
I posted a link to the actual case earlier (but it is not working right now). Here it is again (FWIW):
http://www.justis.com/titles/iclr_bqb14040.html
Here is Suber discussing the Dudley and Stephens case:
http://www.earlham.edu/~peters/writing/csepref.htm#introduction
If you are curious about what happened to the defendants in Dudley and Stephens,
http://www.earlham.edu/~peters/writing/csepref.htm#introduction
“Unlawful” is an element of the crime itself, not an exception to it.
Actually, I believe a few states may still have common law crimes. What’s certain is that many states have simply codified the common law definitions of various crimes, including murder.
Nonsense. The “lawful” element is there to distinguish between homicides that occur under color of law (e.g., executions and warfare) from those that occur outside the bounds of law. It is not merely an affirmative defense, such as self-defense.