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ICJI 704C FIRST DEGREE MURDER – MURDER IN PERPETRATING OR ATTEMPTING TO PERPETRATE A FELONY INSTRUCTION NO. In order for the defendant to be guilty of First Degree Murder in the perpetration of, or attempt to perpetrate, a felony, the state must prove each of the following: 1. On or about [date] 2. in the state of Idaho 3. the murder was committed in the perpetration of, or attempt to perpetrate, [an aggravated battery on a child under twelve (12) years of age] [arson] [rape] [robbery] [burglary] [kidnapping] [mayhem] [an act of terrorism] [use of a [weapon of mass destruction] [or] [biological weapon] [or] [chemical weapon]]. To prove [name of defendant] guilty of first degree murder in this way, the state does not have to prove that the defendant intended to kill [name of decedent], but the state must prove that during the perpetration or attempt to perpetrate [name of crime], the defendant [,or another person who was acting in concert with the defendant in furtherance of a common plan or scheme to commit [name of crime],] killed [name of decedent]. If you find that the state has failed to prove any of the above, you must find the defendant not guilty of first degree murder. If you find that all of the above have been proven beyond a reasonable doubt, then you must find the defendant guilty of first degree murder.] Comment Idaho Code §§ 18-4001, 18-4003. If the court is going to instruct on the included offense of Voluntary Manslaughter, the transition instruction 225, and then the Voluntary Manslaughter instruction 708, should be given. FELONY MURDER DEFINED BY STATUTE IC § 18–4003: Any murder committed in the perpetration of, or attempt to perpetrate, aggravated battery on a child under 12 years of age, arson, rape, robbery, burglary, kidnapping, mayhem, terrorism, or the use of a weapon of
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mass destruction, biological weapon or chemical weapon, is murder of the first degree. MURDER IS A COMMON LAW CRIME "Murder is a common law crime whose complete development required several centuries. Though murder is frequently defined as the unlawful killing of another 'living human being' with 'malice aforethought,' in modern times the latter phrase does not even approximate its literal meaning. Hence it is preferable not to rely upon that misleading expression for an understanding of murder but rather to consider the various types of murder ... which the common law came to recognize and which exist in most jurisdictions: (1) intent to kill murder; (2) intent to do serious bodily injury murder; (3) depraved heart murder; and (4) felony murder." State v. Lankford , 116 Idaho 860, 866, 781 P.2d 197, 203 (1989).
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