Homicide Charges

During the course of a fight at a residence, W hit H in the head with a frying pan. Upon his arrest, W was found to have a blood-alcohol level of 0.19 (exceeding the legal level of 0.10 needed for the finding of intoxication for a D.W.I.). H is alive when he is transported to the hospital but dies two days later. Ignorant of H's death, the district attorney charges W with public intoxication and assault. W pleads guilty to these charges. Still ignorant of H's death, the district attorney recommends the minimum sentence and the judge, also ignorant of H's demise, imposes this minimum sentence. The question is whether the district attorney can charge and prosecute W for homicide once he learns of H's death.

The answer is generally yes, the district attorney can charge W with the homicide of H without running afoul of double jeopardy. It has long been accepted that a defendant can be charged with and convicted of the homicide of a victim even though he was formerly convicted of an assault on that victim which constituted the same act as the homicide, if the victim dies of the injuries suffered in the assault after the defendant is convicted of the assault. See 2 Wharton's Criminal Law � 118 (15th ed. 1994).

The prohibition against double jeopardy is meant to protect defendants from being tried twice for the same offense. Under the test created by the U.S. Supreme Court, determining whether there are two offenses or only one depends upon whe

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bona fide purchasers only. The Supreme Court, however, held that a donee did come under the definition of an owner under the statute since the statute never qualified the definition of an owner. 113 S. Ct. at 1134. The government also argued that the girlfriend was not an owner because the statute vested ownership of the property in the U.S. government at the moment the proceeds of the illegal drug sale were used to purchase the home. The Court rejected this argument, although its reasoning was split in a plurality decision. Justice Stevens said that the common law rule of fictional and retroactive vesting was not self-executing and could only occur when the government wins a judgment of forfeiture. Justice Stevens also said that even if this common law rule was inapplicable, the text of Section 881 supports extending the innocent owner defense to property interests obtained after the act giving rise to the forfeiture. 113 S. Ct. at 1135-37. Justice Scalia, on the other hand, supported the common law rule only. 113 S. Ct. at 1138-40 (Scalia, J., concurring). The issues of disjunctive v. conjunctive readings of the defense, knowledge, and consent were left unaddressed by the Court in Buena Vista. The majority of court

Category: Government - H