外國(guó)刑法學(xué)（華南師范大學(xué)）防衛(wèi)過當(dāng)產(chǎn)生作為義務(wù)state ex rel. kuntz v. montana thirteenth judicialdist

1、User Name : Xingcheng PanDate and Time : Nov 06, 20151:50 a.m. ESTJob Number : 25910757Document(1) HYPERLINK /api/document?id=urn:contentItem:3YG0-5T10-0039-42SB-00000-00&idtype=PID State ex rel. Kuntz v. Montana Thirteenth Judicial Dist. Court, 2000 MT 22Client/Matter: -None-Narrowed by:Content Typ

2、eNarrowed byCases-None- PositiveAs of: November 6, 2015 1:50 AM EST HYPERLINK /api/document?collection=cases&id=urn:contentItem:3YG0-5T10-0039-42SB-00000-00&context=1000516 State ex rel. Kuntz v. Montana Thirteenth Judicial Dist. CourtSupreme Court of MontanaSeptember 23, 1999, Heard; October 21, 19

3、99, Submitted ; January 27, 2000, Decided No. 99-055Reporter2000 MT 22; 298 Mont. 146; 995 P.2d 951; 2000 Mont. LEXIS 18; 57 Mont. St. Rep. 111STATE OF MONTANA, ex rel. BONNIE KUNTZ, Relator v. MONTANA THIRTEENTH JUDICIAL DISTRICT COURT, YELLOWSTONE COUNTY, The Honorable Russell C. Fagg, Presiding,

4、RespondentPrior History: ORIGINAL PROCEEDING FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone. The Honorable Russell C. Fagg, Judge presiding. Disposition:Affirmed and remanded. Core Termssummon, legal duty, use force, justifiable, circumstances, stabbin

5、g, medical aid, self-defense, peril, negligent homicide, personal relationship, criminal liability, aggressor, attacker, parties, amended information, deadly force, omission, use deadly force, culpable, revived, wounded, involuntary manslaughter, supervisory control, bodily injury, causing death, cr

6、iminally, assailant, bystander, issuesCase SummaryProcedural PostureDefendant applied for a writ of supervisory control after the District Court for the Thirteenth Judicial District, Yellowstone County (Montana), denied her motion to dismiss or strike the States amended information.OverviewDefendant

7、, charged with negligent homicide for causing the death of her boyfriend by stabbing him once in the chest, pleaded not guilty, asserting justifiable use of force. The State filed an amended information charging the same offense but alleged the defendant caused the victims death by stabbing him and

8、then failed to obtain medical assistance. Defendants motion to dismiss the amended information, or alternatively to strike the allegation that failure to seek medical assistance constituted negligent homicide, was denied. She applied for a writ of supervisory control. The Supreme Court affirmed the

9、order denying defendants motion and directed the district court, in its evidentiary rulings, to be guided by the courts conclusion that, if a finding that defendants use of force was indeed justified, then a subsequent delay in seeking medical aid would be immaterial in addressing the factors that c

10、aused the victims death.OutcomeThe order denying defendants motion to amend or strike the amended information was affirmed and case remanded. The court stated that evidence of defendants exercise of her right to seek and secure safety could not, in turn, be used as evidence demonstrating her failure

11、 or delay in summoning aid.LexisNexis HeadnotesCivil ProcedureAppealsStandards of ReviewDe Novo ReviewCriminal Law & Procedure.Accusatory InstrumentsInformationsGeneral OverviewCriminal Law & Procedure.Standards of ReviewDe Novo ReviewGeneral OverviewHN1 A district courts denial of a motion to amend

12、 or strike a criminal information involves legal questions which the Montana Supreme Court reviews de novo, determining only whether the court correctly interpreted the law.Criminal Law & ProcedureCriminal OffensesActs & Mental StatesActus ReusTorts.ElementsDutyGeneral OverviewTorts.DutyAffirmative

13、Duty to ActFailure to ActHN2 For criminal liability to be based upon a failure to act, there must be a duty imposed by the law to act, and the person must be physically capable of performing the act. HYPERLINK /api/document?collection=statutes-legislation&id=urn:contentItem:5B62-1NM1-DYNH-C2BV-00000

14、-00&context=1000516 Mont. Code Ann. 45-2-202.Criminal Law & ProcedureCriminal OffensesActs & Mental StatesActus ReusTorts.DutyAffirmative Duty to ActFailure to ActHN3 The American bystander rule imposes no legal duty on a person to rescue or summon aid for another person who is at risk or in danger,

15、 even though society recognizes that a moral obligation might exist. This is true even when that aid can be rendered without danger or inconvenience to the potential rescuer.Criminal Law & ProcedureCriminal OffensesActs & Mental StatesActus ReusTorts.ElementsDutyGeneral OverviewTorts.DutyAffirmative

16、 Duty to ActCreators of Foreseeable PerilTorts.DutyAffirmative Duty to ActFailure to ActTorts.DutyAffirmative Duty to ActVoluntary Assumption of DutyTorts.General Premises LiabilityDuties of CareGeneral OverviewHN4 There are seven common-law exceptions to the American bystander rule: 1) a duty based

17、 on a personal relationship, such as parent-child or husband-wife; 2) a duty based on statute; 3) a duty based on contract; 4) a duty based upon voluntary assumption of care; 5) a duty based on creation of the peril; 6) a duty to control the conduct of others; and 7) a duty based on being a landowne

18、r. A breach of one of these legal duties by failing to take action, therefore, may give rise to criminal liability.Criminal Law & ProcedureCriminal OffensesActs & Mental StatesActus ReusTorts.ElementsDutyGeneral OverviewHN5 Under certain circumstances, a husband has a duty to summon medical aid for

19、his wife and breach of that duty could render him criminally liable.Criminal Law & ProcedureCriminal OffensesActs & Mental StatesActus ReusHN6 When a person places another in a position of danger, and then fails to safeguard or rescue that person, and the person subsequently dies as a result of this

20、 omission, such an omission may be sufficient to support criminal liability.Criminal Law & Procedure.Homicide, Manslaughter & MurderInvoluntary ManslaughterGeneral OverviewCriminal Law & Procedure.Homicide, Manslaughter & MurderInvoluntary ManslaughterElementsCriminal Law & ProcedureCriminal Offense

21、sActs & Mental StatesActus ReusFamily LawMarital Duties & RightsGeneral OverviewTorts.ElementsDutyGeneral OverviewTorts.DutyAffirmative Duty to ActFailure to ActHN7 Failure to obtain medical aid for one who is owed a duty is a sufficient degree of negligence as to constitute involuntary manslaughter

22、.Family LawParental Duties & RightsDutiesGeneral OverviewTorts.ElementsDutyGeneral OverviewTorts.DutyAffirmative Duty to ActFailure to ActHN8 The legal duty to summon aid imposed on personal relationships and those who create peril are not absolute; i.e., there are exceptions to these exceptions. Th

23、e personal relationship legal duty does not require a person to jeopardize his own life. The duty does not arise unless a spouse unintentionally entered a helpless state, or is otherwise incompetent to summon medical aid on his or her own behalf.Torts.ElementsDutyGeneral OverviewHN9 The law does not

24、 require that a person, who places another person in a position of peril, risk bodily injury or death in the performance of the legally imposed duty to render assistance.Torts.DefensesContributory NegligenceGeneral OverviewTorts.Standards of CareReasonable CareGeneral OverviewHN10 What constitutes a

25、 reasonable standard of care must be guided by the principle that what an ordinarily prudent and careful person would do under a given set of circumstances is usually controlled by the instinctive urge to protect himself from harm.Criminal Law & ProcedureCriminal OffensesActs & Mental StatesActus Re

26、usTorts.DutyAffirmative Duty to ActFailure to ActTorts.DutyAffirmative Duty to ActVoluntary Assumption of DutyHN11 Where self-preservation is at stake, the law does not require a person to save the others life by sacrificing his own, and therefore no crime can be committed by the person who in savin

27、g his own life in the struggle for the only means of safety, causes the death of another.Criminal Law & ProcedureCriminal OffensesActs & Mental StatesActus ReusTorts.ElementsDutyGeneral OverviewHN12 Although a person may still be held accountable for the results of the peril into which he or she pla

28、ced another, the law does not require that he or she risk serious bodily injury or death in order to perform a legal duty.Criminal Law & ProcedureDefensesSelf-DefenseTorts.ElementsDutyGeneral OverviewHN13 Whether inflicted in self-defense or accidentally, a wound that causes a loss of blood undoubte

29、dly places a person in some degree of peril, and therefore gives rise to a legal duty to either 1) personally provide assistance; or 2) summon medical assistance. Even so, the performance of this legal duty, does not require that a person place herself at risk of serious bodily injury or death.Crimi

30、nal Law & ProcedureDefensesSelf-DefenseTorts.ElementsDutyGeneral OverviewHN14 When a person justifiably uses force to fend off an aggressor, that person has no duty to assist her aggressor in any manner that may conceivably create the risk of bodily injury or death to herself, or other persons. This

31、 absence of a duty necessarily includes any conduct that would require the person to remain in, or return to, the zone of risk created by the original aggressor.Criminal Law & ProcedureDefensesSelf-DefenseTorts.ElementsDutyGeneral OverviewHN15 The victim has but one duty after fending off an attack,

32、 and that is the duty owed to ones self - as a matter of self-preservation - to seek and secure safety away from the place the attack occurred. The person who justifiably acts in self-defense is temporarily afforded the same status as the innocent bystander under the American rule.Criminal Law & Pro

33、cedureDefensesSelf-DefenseTorts.ElementsDutyGeneral OverviewHN16 The duty to summon aid may in fact be revived, but only after the victim of the aggressor has fully exercised her right to seek and secure safety from personal harm. Then, and only then, may a legal duty be imposed to summon aid for th

34、e person placed in peril by an act of self-defense. Preliminary to imposing this duty, it must be shown that 1) the person had knowledge of the facts indicating a duty to act; and 2) the person was physically capable of performing the act.Criminal Law & Procedure.Homicide, Manslaughter & MurderInvol

35、untary ManslaughterGeneral OverviewCriminal Law & Procedure.Homicide, Manslaughter & MurderInvoluntary ManslaughterElementsCriminal Law & ProcedureCriminal OffensesActs & Mental StatesActus ReusTorts.ElementsDutyGeneral OverviewTorts.Standards of CareReasonable CareGeneral OverviewHN17 Once imposed,

36、 a proven breach of the legal duty to act may still fall far short of negligent homicide, pursuant to HYPERLINK /api/document?collection=statutes-legislation&id=urn:contentItem:5B62-1NM1-DYNH-C2D8-00000-00&context=1000516 Mont. Code Ann. 45-5-104, which requires a gross deviation from an ordinary or

37、 reasonable standard of care.Criminal Law & ProcedureDefensesSelf-DefenseTorts.ElementsCausationCausation in FactHN18 To find a person who justifiably acts in self-defense criminally culpable for negligently causing the death of the aggressor, the failure to summon medical aid must be the cause in f

38、act of the original aggressors death, not the justified use of force.Torts.ElementsCausationCausation in FactHN19 A partys conduct is a cause-in-fact of an event if the event would not have occurred but for that conduct; conversely, a defendants conduct is not a cause of the event, if the event woul

39、d have occurred without it.Criminal Law & ProcedureDefensesJustificationTorts.ElementsDutyGeneral OverviewHN20 A person, who is found to have used justifiable force, but who nevertheless fails to summon aid in dereliction of the legal duty, may be found criminally negligent only where the failure to

40、 summon aid is the cause-in-fact of death, rather than the use of force itself.Criminal Law & ProcedureCriminal OffensesActs & Mental StatesActus ReusTorts.DutyAffirmative Duty to ActFailure to ActTorts.ProofViolations of LawStandards of CareHN21 Even where a duty to summon aid revives, the breach o

41、f this duty should not be construed as constituting criminal negligence per se. A breach of the legal duty to summon aid may be the cause-in-fact of death, but is still not necessarily a crime under HYPERLINK /api/document?collection=statutes-legislation&id=urn:contentItem:5B62-1NM1-DYNH-C2D8-00000-

42、00&context=1000516 Mont. Code Ann. 45-5-104.Torts.ElementsDutyGeneral OverviewHN22 The existence of a legal duty to act - whether at the time of injury or later by revival - is a question of law, while the breach of the duty is for determination by the fact finder.Criminal Law & ProcedureDefensesJus

43、tificationHN23 Pursuant to HYPERLINK /api/document?collection=statutes-legislation&id=urn:contentItem:5B62-1NM1-DYNH-C2CF-00000-00&context=1000516 Mont. Code Ann. 45-3-102, a person is justified in the use of force or threat to use force against another when and to the extent that he reasonably beli

44、eves that such conduct is necessary to defend himself or another against such others imminent use of unlawful force. The defendant has the burden at trial of producing sufficient evidence on this issue to raise a reasonable doubt of guilt. Ultimately, whether or not her use of force was justified wi

45、ll be determined by the jury. Such a determination will be made based on evidence of what the defendant reasonably believed at the time she was confronted with the alleged imminent use of unlawful force.Criminal Law & ProcedureDefensesJustificationHN24 The question of whether or not a stabbing resul

46、ted from an act of justified self-defense must be determined by a consideration of the circumstances as they existed at the time the blow was struck.Criminal Law & ProcedureDefensesJustificationTorts.ElementsDutyGeneral OverviewHN25 Evidence of a persons exercise of the right to seek and secure safe

47、ty cannot, in turn, be used as evidence demonstrating a failure or delay in summoning aid. The revival of a duty to render aid does not commence following a justified use of force until a person has fully exercised her right to seek and secure safety.Counsel:For Relator: Vernon E. Woodward, Lance G.

48、 Lundvall, Hendrickson, Everson, Noenning & Woodward, Billings, Montana (Woodward argued).For Respondent: Joseph P. Mazurek, Montana Attorney General, Patricia J. Jordan, Assistant Montana Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone County Attorney, Billings, Montana (Jordan argue

49、d).For Amici Curiae: John P. Connor, Jr., Helena, Montana; Tom Scott, Dillon, Montana (Montana County Attorneys Association); Daniel P. Buckley, Berg, Lilly, Antral & Tollefsen, Bozeman, Montana (Montana Association of Criminal Defense Lawyers). Judges:Justice James C. Nelson delivered the Opinion o

50、f the Court. We concur: J. A. Turnage, Chief Justice, Jim Regnier, Karla M. Gray, W. William Leaphart, Justices. Justice Terry N. Trieweiler concurring and dissenting. Justice William E. Hunt, Sr., joins in the concurring and dissenting opinion of Justice Terry N. Trieweiler. Opinion by:James C. Nel

51、sonOpinion*148 *953 Justice James C. Nelson delivered the Opinion of the Court.*P1 This is an original proceeding in this Court involving an application for a writ of supervisory control. On January 8, 1999, the District Court for the Thirteenth Judicial District, Yellowstone County, issued an Order

52、 denying Bonnie Kuntzs motion to dismiss or strike an amended information. The amended information alleged, under one charge, that Kuntz negligently caused the death of Warren Becker by stabbing and then failing to call for medical assistance. Kuntz contended that her affirmative defense of justifia

53、ble use of force nullified any conceivable duty she had to render aid to Becker following the stabbing, and therefore the portion *954 of the information pertaining to her failure to summon medical aid should be amended or stricken. In denying Kuntzs motion, the District Court stated that because Ku

54、ntz may have had such a duty, both she and the State would be permitted to argue whether her actions after the stabbing tend to refute her*149 claim of justification. Kuntz sought a writ of supervisory control and the State concurred. In an order dated March 23, 1999, this Court accepted original ju

55、risdiction at the request of both parties. This Court concluded that the criteria set forth in Rule 17, M.R.App.P. and HYPERLINK /api/document?collection=cases&id=urn:contentItem:3RX4-39W0-003G-808B-00000-00&context=1000516 Plumb v. Fourth Judicial Dist. Court HYPERLINK /api/document?collection=case

56、s&id=urn:contentItem:3RX4-39W0-003G-808B-00000-00&context=1000516 (1996), 279 Mont. 363, 927 P.2d 1011, were satisfied and that legal questions raised were ones of first impression.*P2 The following issues were identified by our order, and have been briefed and orally argued by both parties:1. Does

57、one who justifiably uses deadly force in defense of her person nevertheless have a legal duty to summon aid for the mortally wounded attacker?2. If a person who justifiably uses deadly force fails to summon aid for her attacker, is she criminally culpable for that failure?3. Should the prosecution b

58、e permitted to argue that the defendants actions following the use of deadly force may be considered by the fact-finder in making its decision as to the validity of the justifiable use of force defense?4. Should the prosecution be permitted to argue that even if the defendant acted with justifiable

59、use of force, her delay in seeking medical aid for the mortally wounded attacker was a factor in causing his death?5. May the defendants actions following an unjustified use of deadly force be alleged as facts supporting charging the offense of negligent homicide?Factual and Procedural Background*P3

60、 According to the amended information and supporting affidavit, Yellowstone County Sheriffs deputies were dispatched on April 19, 1998, to the home of Bonnie Kuntz and Warren Becker to investigate a reported stabbing. When the deputies arrived at the trailer house, Becker was dead from a single stab