There is probably video surveillance that will solve these questions:
1) Was he shot in the back?
2) Was he incapacitated / did he no longer pose a threat?
3) How much 'thought' was put into the fatal shooting?
If he was indeed shot in the back it could be a problem. If the kid was incapacitated it is probably a problem. And the longer the guy had to think about it or more evident it was that he considered it, the more likely it is a problem.
BUT... I don't think it warrants a first degree murder charge unless the story he told was way off. If he shot the guy, chased the others, came back in, got another guy, and as the guy lay on the ground unarmed unloaded into him . . . then it would probably warrant the charge (I'd probably convict of something lesser though, given the situation).
A. A person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
B. A person also commits the crime of murder in the first degree, regardless of malice, when that person or any other person takes the life of a human being during, or if the death of a human being results from, the commission or attempted commission of murder of another person, shooting or discharge of a firearm or crossbow with intent to kill, intentional discharge of a firearm or other deadly weapon into any dwelling or building as provided in Section 1289.17A of this title, forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, eluding an officer, first degree burglary, first degree arson, unlawful distributing or dispensing of controlled dangerous substances, or trafficking in illegal drugs.
C. A person commits murder in the first degree when the death of a child results from the willful or malicious injuring, torturing, maiming or using of unreasonable force by said person or who shall willfully cause, procure or permit any of said acts to be done upon the child pursuant to Section 7115 of Title 10 of the Oklahoma Statutes. It is sufficient for the crime of murder in the first degree that the person either willfully tortured or used unreasonable force upon the child or maliciously injured or maimed the child.
D. A person commits murder in the first degree when that person unlawfully and with malice aforethought solicits another person or persons to cause the death of a human being in furtherance of unlawfully manufacturing, distributing or dispensing controlled dangerous substances, as defined in the Uniform Controlled Dangerous Substances Act, unlawfully possessing with intent to distribute or dispense controlled dangerous substances, or trafficking in illegal drugs.
E. A person commits murder in the first degree when that person intentionally causes the death of a law enforcement officer or correctional officer while the officer is in the performance of official duties.
21 OS 707.1I just don't think it fits very well. Perhaps they are saying the robber was a child and he used unreasonable force?
If he shot the guy when he was down and out, it is a crime. But certainly it was in the heat of passion and not a thought out or executed plan. Other kinds of murder:
Homicide is murder in the second degree in the following cases:
1. When perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; or
2. When perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in Section 1, subsection B, of this act.
12 OS 701.8Homicide is manslaughter in the first degree in the following cases:
1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
2. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.
12 OS 711Homicide is also justifiable when committed by any person in either of the following cases:
1. When resisting any attempt to murder such person, or to commit any felony upon him, or upon or in any dwelling house in which such person is; or,
2. When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished; or,
3. 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.
21 OS 733All other 'murder' is Second Degree manslaughter. There is also negligent homicide, but it probably doesn't apply.
Here is my guess: first degree murder by the death of a child.
No person may be convicted of murder in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, the death of a child under the age of eighteen;
Second, the death resulted from the willful or malicious injuring/ torturing/maiming/(using of unreasonable force);
[Third, by the defendant.]
OUJI CR 4-64AIt might be more helpful for some to look over the jury instructions to figure out what those damn statutes say:
http://www.okcca.net/online/oujis/oujisrvr.jsp?o=3