Quote:
Originally Posted by Tom Earp
Kevin, I normally do not disagree with you but I will here.
You being a lawyer and me being an ex cop there is a difference.
Unless this guy planned to kill him before the fight, that is first degree. If it happened during a fight with out fore thought it would be manslaughter.
It would be up to the prosecutor to prove first degree. Defense of course would fight that and get it thrown out.
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It's possible that Kansas and Oklahoma law disagree on that point. Intent can be formed in an instant and the only proof you need is action to carry out that intent to kill. Strangulation is treated as an intentional act to kill in most cases which is why we even have a special category for assault & battery by strangulation crimes carrying a much more serious sentence than just simple a&b.
We had a case recently which I think really helps illustrate things. A few years back, a couple of kids attempted to rob a local pharmacy. The pharmacist behind the counter had been robbed before and was ready. He pulled a gun from behind the counter and shot one of the kids in the head. The other kid fled the scene. The pharmacist pursued him and attempted to shoot him as he fled.
The pharmacist came back into the store and retrieved another gun from behind the counter. He stated he saw the injured robber move and shot that kid an additional five times.
The case went to trial, and legally, even if the jury would have taken the pharmacist's words at face value that the robber was stirring and could have had a weapon (reasonable), the first shot was self defense and the last four were murder in the first degree. That, in Oklahoma at least is how quickly intent can be formed.
