In some cases, it is difficult to determine whether malice aforethought was present;

1. Killing a human being on purpose is called criminal homicide, usually distinguished from manslaughter by the element of malice aforethought.

2. The most direct case of malicious intent occurs when the killer is known to have adopted the deliberate intent to commit the homicidal act at some time before it is actually committed.

3. Here, malice is presumed if the killer intended to inflict serious bodily injury, or if he behaved with such reckless disregard of the safety of others as to betray a “depraved heart.”

4. Likewise, a killing incidentally committed in the course of a felony (e.g., robbery or rape) is deemed murder; if the felony was accomplished by more than one person, all are equally guilty of the murder, not only the actual killer.

5. A murder that is incidental to a misdemeanor, however, is treated as manslaughter. Most states prescribe various degrees of murder.

6. Murder in the first degree generally is a calculated act of slaying committed with malice aforethought, often requiring aggravated circumstances such as extreme brutality.

7. It receives the severest penalty, often life imprisonment or capital punishment. Second-degree murder is a homicide committed with malice, but without deliberation or premeditation.

8. A homicide committed without malice (as in negligent motor vehicle operation) or in the “heat of passion” (as in a quarrel which escalates to violence) is generally considered manslaughter.

9. In some states, certain crimes that are defined as murder of a lower degree approximate more closely the definition of manslaughter in common law.

10. In some cases, it is difficult to determine whether malice aforethought was present;

11. consequently the governor of a state (or other chief executive) not infrequently uses his power of commutation of sentence to revoke the death penalty, and in some states the appellate courts automatically review all convictions of murder.

12. Aggravated Assault:Definition - An unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury. This type of assault usually is accompanied by the use of a weapon or by means likely to produce death or great bodily harm.

13. (It is not necessary that injury result from an aggravated assault when a gun, knife, or other weapon is used which could and probably would result in serious personal injury if the crime were successfully completed.)

14. Criminal Homicide:Murder and Non-negligent Manslaughter:Definition - The willful (non-negligent) killing of one human being by another.Negligent Manslaughter:Definition - The killing of another person through gross negligence.

15. The definition of criminal negligence (often termed “culpable negligence”) is “recklessness or carelessness resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others.” (Barrons’ Law Dictionary, 1991).

16. So, did Doodle’s brother commit murder, was he guilty of criminal negligence, or was he just a jerk?

17. Murder

18. Manslaughter

19. In a 6-1 decision, the Georgia Supreme Court has reversed the felony murder conviction Jonathan Dunagan received in Columbia County for the Feb. 4, 1997, shooting death of Jason Freund. Dunagan v. State, No. S98A0421 (July 16, 1998).

20. At issue in the appeal were the trial court's instructions to the jury that the crime of aggravated assault can be committed by an act of criminal negligence.

21. In the June 8 decision the court found that the trial court erred in its instructions, but that the error was harmless.

22. According to evidence presented at trial, Dunagan was 15-years-old when he fatally shot Freund, who was among a group of youths Dunagan "hung out" with after school.

23. Several in the group owned or had access to hand guns. Dunagan owned a five-shot revolver, which he usually loaded with three bullets in such a manner that he could pull the trigger twice before it actually fired.

24. On the day of the shooting, Dunagan left his gun unattended and a member of the group rotated the gun's cylinder. When Dunagan later pointed the gun at Freund and pulled the trigger, it fired. The bullet hit Freund in the head and killed him instantly.

25. Dunagan was charged with felony murder while in the commission of an aggravated assault.The trial court gave the routine instruction on the definition of a crime as a violation of a statute in which there is joint operation of an act or omission and intent or some criminal negligence.

26. The jury had difficulty distinguishing between murder and involuntary manslaughter and requested several further instructions as to that distinction and whether felony murder could be committed without intent.

27. The trial court then instructed that intent was required but "criminal negligence can substitute for intent" and then recharged on the definition of criminal negligence.

28. The defense objected on the ground that aggravated assault was an intentional felony which could not be committed through criminal negligence.

29. The jury convicted Dunagan of felony murder while in the commission of an aggravated assault and of possession of a firearm during the commission of a felony.

30. Justice Carol W. Hunstein, writing for the majority, found the evidence presented at trial supports the convictions.

31. (An assault can be committed when a person '[a]ttempts to commit a violent injury to the person of another,' OCGA § 16-5-20 (a) (1) and when a person '[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.' OCGA § 16-5-20 (a) (2). The jury was instructed on both types of assault.)