Death as second degree murder

There has been only one successful second degree murder conviction involving a death caused by a dog. In Kansas v. Sabine Davidson, the defendant was found guilty of second degree murder because her Rottweiler dogs killed a young boy. There was evidence that the defendant trained the dogs to be aggressive. The killing took place in Geary County, Kansas, in April 1997. The story of this tragic case can be read on the website of Court TV.

A jury convicted another defendant of second degree murder, but the case has been on appeal and the appeals will most likely continue. In March 2001, second degree murder charges (as well as lesser charges) were brought against Marjorie Knoller. She and her husband Robert Noel were the owners of a Presa Canario dog that on January 26, 2001, killed Diane Whipple, a 33-year-old woman in San Francisco, California. The defendants also were charged with involuntary manslaughter and keeping a mischievous animal that caused death. A jury found the defendants to be guilty on all counts, but Knoller's second degree murder conviction led to a lengthy and complicated appeal. As of August 2008, Knoller's motion for a new trial was denied the second degree murder conviction was reinstated by the trial court. However, the See The Diane Whipple Case.

The Penal Code sections relating to second degree murder in California are similar in principle to other states, and therefore are reproduced here:

187.  (a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. ...

188.  Such malice may be express or implied.  It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.  It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. ...

189.  All murder which is perpetrated ... by any other kind of willful, deliberate, and premeditated killing ... is murder of the first degree.  All other kinds of murders are of the second degree. ...   

To prove the killing was "deliberate and premeditated," it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.

The California statute establishes three kinds of second degree murder: 

• Unpremeditated murder with express malice. This might result from an intentional attack on the victim, using the dog as the instrument of the attack, but there has been no such case like that. 
• Second degree felony-murder. This would be a homicide that happens during the course of a felony that is inherently dangerous to human life, and not an integral part of the homicide itself. "Inherently dangerous" means that the felonious act presents a high probability that it will result in death. There are a few felonies that involve dogs, but there have been no prosecutions for second degree murder of this sort.
• Implied malice - murder. Malice is implied when either (a) no considerable provocation appears, or (b) circumstances indicate an "abandoned and malignant heart." The latter refers to doing an act with a (a) wanton disregard for human life, or an act involving a high degree of probability that death will result, or (b) conscious disregard for human life, i.e., doing something dangerous to human life, with actual knowledge of the danger and conscious disregard of the fact that the act endangers the life of someone.

An act of implied malice can include a failure to act, such as not feeding a baby until it starves to death. A person might be convicted of second degree murder on an implied malice theory if he or she knew that a front yard has pit bulls in it, that the pit bulls were trained to attack human beings or had a habit of attacking human beings, that the pit bulls were capable of killing human beings, that the front yard had a gate that would permit the pit bulls to escape the yard if the gate were left open, that the gate might be open, and that children might be walking past the open gate.

Indeed, that was the prosecution's theory in the Cash Carson prosecution. Prosecutors filed second degree murder charges against the caretaker of the two dogs that mauled 10-year-old Cah Carson to death in Newberry Springs, California, on April 29, 2000. The caretaker was Joseph Chiaveta, 54. The defendant also was charged with involuntary manslaughter. In that case, the jury found the defendant not guilty of second degree murder (but guilty of manslaughter) because there was no evidence that the dogs were known or trained to fight, attack or kill.

To read more about about second degree murder, see The Diane Whipple Case.