I can't even imagine being this father.

A 16-year-old Ohio girl was fatally shot by her father after he thought she was an intruder breaking into their home, according to a 911 call obtained by NBC News.

The girl, Janae Hairston, died Wednesday at a Columbus hospital about an hour after she was shot in the garage of her parents' home on Piper Bend Drive.

In the nearly 8-minute 911 call, Hairston's mother tells a dispatcher that her husband accidentally shot their daughter. The hysterical mother begs for an ambulance as a man in the background says repeatedly, "breathe, baby."

“My husband made a mistake and shot her because he thought she was an intruder," the mother says. "She was in our garage and my husband just didn’t know what was going on. Oh my God.”

The mother says she thinks the teen was shot in the chest. Both of the parents can be heard asking what the girl was doing in the garage.

Police arrived at the home about six minutes after the call was made.

The Columbus Division of Police said in a tweet that charges have not been filed and the case was forwarded to the Franklin County Prosecutor's Office for review.

MSN

Prayers for the family. Unfortunately I am sure there will be the usual flood from the monday morning quarterbacks demanding that the father be prosecuted for a tragic mistake.

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Common sense isn't so common.

"Always be certain of your target, and what lies beyond it."

A good argument for either a flashlight or a weapon mounted light. That sort of pain never goes away.

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Only a cold warrior

Amen!

Either total stupidity or negligence on the part of the father. There is no excuse for something like this to happen.

Kids, no matter how good, have been known to sneak in and out of the house. Parents have to dial the guard instinct way down, especially if it involves an armed response. Make certain of your target, no matter what.

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Possum—The other white meat!

Amen to what John just said. Tragic all around.

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Pack light and cinch tight.

A tragedy indeed.

Nothing here can be undone, but hopefully someone will learn lessons from this that might prevent a similar event in the future.

I read about that. I also read/heard in the past few days of a father accidentally shooting his son. I did not read or hear the full story but my surmise is that the case was similar.

I could not live with myself from that day forward……enough said.

It is tragic. He shouldn’t have fired on an intruder unless his life was threatened.

Sad deal all around.

Yup, it was all her fault.

Tragic mistake and horrible situation.
I cannot even imagine the Dad and Mom's grief and anguish.
Prayers for the entire family, they're gonna need lots of help.

I won't comment on the could'a, should'a, or would'a - We ALL know the answers there. Just take the lesson and make darn sure it NEVER happens to you or yours. 'nuff said about that.

WYT-P
Skyhunter

This is a terrible tragedy.

In some states a garage is NOT part of the house legally and the use of deadly force without definite reason may have legal problems attached. What time of night it was, if he knew the daughter was not in the house and other considerations will be involved. All that being said it is a terrible tragedy for all concerned.

Your comments raise a good point: where do we draw the line with prosecuting someone for an accident?

I think Alec Baldwin should be prosecuted for manslaughter, given his lack of gun safety training and just basic stupidity, notwithstanding his hypocrisy for being anti-gun, yet making a movie involving guns and refusal to man up that he, and not the gun, was responsible.

I'm more inclined to support prosecuting the father in this situation, because there was no imminent threat, he should have had identified the intruder visually, and/or should challenged the intruder with verbal commands. Obviously, he lacked formal training in self-defense or at least failed to run through test scenarios with home intruders/burglars.

In contrast, I'm more sympathic toward Kim Potter, the Minnesota cop convicted of manslaughter last week. Potter meant to use her taser and made spontaneous utterances to that effect, but was also dealing with a suspect resisting arrest.

At some point, society has to prosecute accidental deaths to deter them and encourage citizens' diligence. If we blankedly refuse to prosecute intra-familal deaths, then family members could be inclined to murder each other and appear to make it look like an accident.

When my younger son was about 12, he spent the night at a friend's home, along with a group of other boys. The next day, the host's mother let us know that they had all snuck out of the house in the middle of the night, through a basement door, because they were hungry, and wanted snacks from a nearby convenience store.

When my son got home, we had a real serious talk about that...how foolish it was, and how easily somebody could have gotten hurt. I will never forget the look on his face...he really hadn't thought it through...

What a terrible story. I hope for the Dad’s sake he is prosecuted. Let a judge and jury decide.

I had a case where a grandfather was driving on a reservation dirt road to get water at a communal well. He had his 4 year old grandson with him. The kid wasn’t restrained in any way - he was just jumping around on the front seat, being a kid. Grandpa hit a hole and the little guy bounced out the window and was run over by the back wheels, killing him. No more being a kid.

The boy was still on the scene when I got there, as was grandpa. I got a statement from gramps (he was a youngish grandpa, maybe late 50s) and he asked me to shoot him several times during our talk.

I went back to the office and started to write up a complaint charging him with involuntary manslaughter, based on his negligence in not having the kid at least in a seatbelt. Our secretary almost lost her mind - He’s suffered enough! Then a couple guys in the office chimed in and all of a sudden I was the bad guy (despite never having killed a kid in my entire life). I wrote it up anyway, and the US Attorney’s office spiked it, because “he had suffered enough”. Case closed.

When I told the grandpa he wasn’t going to be charged he just looked at me and shook his head. I think he felt at least getting charged would balance the scales some. He would have pled to anything.

Sad situations, all around.

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“What you got, ain’t new.”

I don't think anyone could fathom the feeling that this family must be going through. Hopefully people can learn from this tragedy. The way I figure, if you live in a home with multiple residents, the "bump in the night" is most likely a resident of the home and not an intruder.

For sigp:
I think you were absolutely right. There are some things where a policeman has discretion and it's OK to use it. When it involves the injury or death of another person, though, you just can't let it go with a warning. You just can't. You have to be the "advocate" for the victim, especially on a fatality of any kind. The dead cannot speak for themselves. It's up to the Officer to do it. If a DA or USA decides differently, then it's on him. They're further up the food chain and then it's out of your hands. But you did what was right, not what the "feelz" said to do. Proud of ya, man. I'd have done the same thing. Period.

i don't know exactly what happened. Their neighbor hood, history of crimes or threats. Just what happened in those seconds when he pulled the trigger. Did she suddenly move in the shadows. Yes, it is a serious mistake no mater how you look at it.

I do not think any court can give him a punishment worse than the one he gave himself. Sigp could be right. The guy might feel better about being in prison. Not saying he deserves a pass.
Life in prison is nothing compared to having to live with the knowledge you killed your child if your any kind of human at all

Tragedy for the child, the mother and even the guilty father.

Thank the Almighty that I have never had the pay the full tilt price for being reckless at times in my past.

I will take the "judge not and you shall not be judged" clause on this one.

Exactly. A few years ago I read of a similar incident where a homeowner shot an intoxicated adolescent neighbor who mistakenly went through the wrong window.

When I served as a LEO, I carried a baton as well as a pistol. The pistol (fortunately) was never needed but the baton came in handy a few times. Bottom line: If all you have is a hammer, everything starts to look like a nail after awhile.

That is beyond tragic. I can’t imagine how stuff like this happens.

i am so glad there are so many experts who can read one brief news report and immediately know not only exactly what happened but why, and how it could have been prevented -- even if they disagree with each other...

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Pisgah

For God's sake, leave the man alone. Hasn't he lost enough to "teach him a lesson"?

I agree a suitable light to ID the perceived threat is important.

That said, our garage has a light switch by the door. Don’t make it more complicated than it has to be, and never shoot unless you are sure an imminent threat exists,

A police officer about an hour and a half from here in Jacksonville NC shot his son in the head. Reportedly a negligent discharge.

Most law enforcement officers are not firearms experts and accidents are unfortunately common.

I agree 100%. I’ve made myself unpopular with many of my friends and my wife’s friends by pointing out the obvious bits of the Potter case:

1) the need for any level of force at all would never have arose if Wright had not previously carried a handgun without a permit, and as such had an outstanding warrant for his arrest. The decision to arrest was also prompted by a restraining order against Wright, and the presence of a woman in the car who had not yet been excluded as the basis of that restraining order. Wright’s previous actions are what turned this from a simple citation to an arrest.

2) even with the arrest, had Wright not resisted and then attempted to flee in his vehicle not need for force would have existed. He brought this on himself.

3) a suspect attempting to flee in a vehicle with another officer still partly inside the vehicle and at imminent risk of serious bodily harm or death *was* a justification for lethal force.

4) Potter was charged and convicted because she immediately made an emotional statement after the shoot that she’d made a mistake. If she’d have lied and stated she intended to take Wright but at the last minute determined that would not have adequately addressed the threat to the other officer it would have been ruled a justified use of lethal force. That’s a lesson you can bet nearly every police officer in the country has learned and taken to heart.

It also a lesson armed citizens should take to heart. After a shoot remain silent. If asked to give a statement, respectfully decline. If you say anything at all, just state you were in fear of your life, you are still emotionally upset and you’ll give a full statement when you are ready and able (and you should under no circumstances be ready and able until after you’ve spoken with legal counsel).

5) Potter’s mistaking a gun for a taser isn’t common but it also isn’t unheard of and it happens about once or two each a year. It’s a known mistake that can be made under extreme stress. That is at odds with negligent intent.

6) the Potter prosecution is a great example of how the law as it pertains to jury trials has gotten out of hand. Some where along the line the role of the jury has been twisted from adding common sense and discretion to the legal process to instead only ruling on whether the letter of the law has been met - and juries are instructed to do just that, even when doing so flies in the face of common sense and an intelligent interpretation of the facts.

The same thing has occurred with mandatory sentencing laws that are intended to ensure sentencing isn’t arbitrary or disparate, but instead remove nearly all discretion from the prosecution and the court. The 110 year sentence for the truck driver in CO is a prime example.

———


Baldwin should be prosecuted in part because he was also the producer who underfunded the safety aspects of the set, including not hiring an arms master to properly manage the firearms and conduct essential safety briefings and weapons loading and clearing activities.

And as always, the actor actually shooting the gun should be properly trained to know and understand if it’s loaded, if so what it is loaded with, and personally verify the status of the weapon.

Baldin failed on all counts.

Why wait for facts? This is the forum way.

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Sure you did

To be fair, there are a fair number of facts already known.

1) A father shot and killed his daughter;

2) while she was in her own garage;

3) because the father for some unknown reason thought she was an intruder.


Other than that unknown reason, not much of relevance is missing.

No, they're not all firearms experts but they are trained to safely handle firearms.

"Unfortunately common"??? I could not disagree with this comment more. So much so I won't even argue the point although I would like to see a statistic that supports "unfortunately common" among LEO's.

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Live long and prosper

Trying to envision how such a negligent discharge could happen. Just seems so unlikely for someone with a basic knowledge of gun safety.

To my mind, most likely scenario I can envision is Bill Jordan practicing his fast draw and shooting through a wall.

Goes to show you, you can't believe the media reports - in that case the child found a guest's gun, in the guest's truck. And shot herself.

But don't let that stop you from piling on and blaming the father.

I will say though, why wasn't a 3 year old being supervised while outside riding her new bicycle?

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Tony

Exactly why we wait for the FACTS.

But hey , this is how the forum operates. They had Rittenhouse guilty before the FACTS.


https://www.google.com/url?sa=t&rct=...A3C0uI6qjd8FFc

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Sure you did

Two different tragedies: North Carolina officer shot teenage son in the head: District attorney

One other fact:

4) he shot without first identifying his target.

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Only a cold warrior

I know of three from 21 years in field policing.

An officer in the '80s spent a year and a zillion dollars getting custody of his 8 year-old daughter. We were usually 'on-call' for immediate emergencies (lack of manpower - you had 24 hours on-call with a 9 hour work requirement in that period). He cleaned his revolver, and the phone rang with a call for service - he loaded the revolver while on the phone. Once off the phone, he remembered he hadn't wiped down the oily revolver, so he wiped it quickly (he had to get it in his holster to go in-service), pulled the trigger to 'snap' the revolver not remembering he had loaded the revolver. He was horrified when it fired, penetrated a wall, and the bullet struck his daughter in the head, killing her instantly.

Another was a captain who blew a hole in his car roof while getting out his shotgun at a 'hot' shooting scene.

Finally, the head of governor's security turned in his issue 9mm for a 45; it looked good, but I checked and found a round in the chamber. No tragedy, but it surely could have been.

Not sure that is an "ufortunately common" number for 700 officers who carried 24/7 for 21 years.

What does "snap" the revolver mean? He was trying to index it, like one can do by rotating the cylinder until it locks in place?

He pulled (snapped) the trigger thinking he was dry-firing.

A Jury of her peers seems to have disagreed with you. After hearing all the facts.

I say prosecute him. I’m sure he’s destroyed inside and I sympathize, but he either recklessly or negligently took a life. That’s either a manslaughter or criminally negligent homicide in NY. Enough with feeing bad and not prosecuting. A life has been taken. An example must be set. If he gets probation then so be it, but he should be charged.

I see this case ultimately winding up in front of a Grand Jury and they will decide what if any charges the father will face. No matter what happens legally, he will never be the same.

Training for most police officers is woefully inadequate, and unfortunately most officers are at their peak proficiency when they leave a law enforcement academy, and that is limited to anywhere from 40-100 hours of training in total, under conditions where retention is questionable. After that’s it’s 1-2 qualifications per year.

The limited data that ims out there suggests that officers are in fact not adequately trained in safe gun handling.

The AP researched news articles and publicly available information a couple years ago and found documentation of 1422 accidental discharges in 285 departments over a 10 year period, with detailed investigation information on 426 of them.

211 of those 426 occurred on duty, the rest off duty or in training. 78 were during routine cleaning, 40 were in the act of loading, drawing or holstering. That’s all pretty basic stuff.

That’s 1422 ADs in just 285 departments. That’s about 140 per year in a small subset of police departments, and roughly 1 AD every two and a half years per department.. Given there are roughly 15,000 police departments in total that’s a lot of potential ADs per year. If the sample that reported officer ADs is representative, that’s about 7400 ADs per year.

Locally in NC, I am aware of two ADs that resulted in injury or death. One occurred a couple years ago in Washington NC, where one officer shot another during training involving a vehicle. And of course there was the recent AD in Jacksonville. Those are the ADs where someone was killed or seriously injured.

Most of the rest that have occurred are probably are unlikely to be reported or well known outside the department. For example, 4 or 5 years ago we had an officer who had an AD in the restroom. A divot in the concrete and a unemployed officer were the result, but the information wasn’t made public. I suspect that’s far more often the case for obviously reasons to protect public confidence.

We have a massive training gap in law enforcement in the US and denial doesn’t solve that problem.

You’ve missed the point. A jury of her peers agreed she was guilty per the specific letter of the law.

And in the process they criminalized an accident. One of my friends commented that even if it was an accident, someone died and homicide is always a crime. I replied that people are killed in accidents all the time, and most of the time are not prosecuted as the death was just that - the result of an accident. He didn’t reply to that. That fact that he bought the “accidental deaths are always a crime” argument in the first place speaks loadly to how we’ve gone way too far with criminal procreations and instructing juries to not look for right or wrong, but simply whether the letter of the law was met.

This is what juries have always done in my lifetime; the judge always instructs them in the law. Always. No one gets to just make it up.

Every state and the Federal system have uniform jury instructions by which they instruct the jury; both sides can ask for deviance from the instructions, but that is seldom allowed.

If you don't like a verdict, appeal. You have the right.

Here's a sample instruction for the 'affirmative defense' of 'mistake of fact.'

14-5120. Ignorance or mistake of fact.1
An issue in this case is whether the defendant believed that __________________2. The burden is on the state to prove beyond a reasonable doubt that the defendant did not have an honest and reasonable belief in the existence of those facts at the time of the alleged conduct. If you have a reasonable doubt as to whether the defendant’s alleged conduct resulted from a reasonable belief in those facts, you must find the defendant not guilty.

USE NOTES

1. If this instruction is given, add to the essential elements instruction for the offense charged, “The defendant did not [act] [fail to act] under a mistake of fact.”

2. Describe what the defendant claims he or she believed.

[As amended, effective January 1, 1997; as amended by Supreme Court Order No. 16-8300-008, effective for all cases pending or filed on or after December 31, 2016.]

Committee commentary. —

When to give

A jury should be instructed on mistake of fact as a defense “when it negates the existence of the mental state essential to the crime charged.” State v. Contreras, 2007-NMCA-119, ¶ 15, 142 N.M. 518, 167 P.3d 966. The jury instructions should be considered in their entirety to determine whether they adequately instruct on the requisite mental state. Id.

“Ordinarily, a defendant is not entitled to a specific instruction where the jury has already been adequately instructed upon the matter by other instructions.” State v. Venegas, 1981-NMSC-047, ¶ 9, 96 N.M. 61, 628 P.2d 306 (upholding the district court’s refusal to give the defendant’s requested mistake of fact jury instruction because it was duplicative). See also State v. Nozie, 2009-NMSC-018, ¶ 36, 146 N.M. 142, 207 P.3d 1119, distinguishing Venegas, 1981-NMSC-047, ¶ 9 (explaining that it was unnecessary to decide whether a mistake of fact instruction, when given along with a proper instruction on the essential elements of the offense of aggravated battery upon a peace officer, would have been cumulative or superfluous because the jury had not been instructed that knowledge of the victim’s status as a peace officer was an essential element of the offense). See also UJI 14-2211 NMRA.

Essential Element – Examples

Where the defendant was charged with aggravated battery upon a peace officer, an offense requiring knowledge of the victim’s identity as a peace officer, the defendant was entitled to a mistake of fact instruction where a reasonable jury could have found that the defendant was in an intoxicated and disoriented state, and in such a state, he believed that the individual he attacked was the private security guard who had followed him from the supermarket parking lot. Nozie, 2009-NMSC-018, ¶¶ 34-35. (Note: UJI 14-2213 and UJI 14-2214 were amended in 2010 to be consistent with Nozie and add knowledge as an essential element to the offense of aggravated battery upon a peace officer.)

In a conviction for breaking and entering, where lack of permission is an essential element, the defendant was entitled to a mistake of fact instruction because sufficient evidence was presented that the defendant believed he had permission to enter the room: the defendant was very intoxicated, he paid for a room, and it could be reasonably inferred that he used the room as one that he paid for. Contreras, 2007-NMCA-119, ¶¶ 9, 11-12, 18.

Fundamental Error

In State v. Bunce, the Supreme Court held that if the defendant had offered a correct mistake of fact instruction as a defense to embezzlement, the district court’s refusal to instruct the jury would have been in error. 1993-NMSC-057, ¶ 13, 116 N.M. 284, 861 P.2d 965. The Supreme Court further concluded that the defendant’s offered mistake of fact instruction was inadequate because the jury could have convicted the defendant based on solely innocent conduct and reversed the defendant’s conviction on the basis of fundamental error. Id. ¶¶ 14-15 (explaining the defendant’s offered instruction would have required the jury to find the defendant not guilty if the defendant believed only that he was owed money, but that the pertinent question was not whether the defendant believed that he was owed money, “but [instead] whether the payments [received by the defendant] were intended to apply to the balance due or whether those payments were intended for some other purpose, such as the purchase and installation of materials”).

[As amended by Supreme Court Order No. 09-8300-028, effective September 16, 2009; as amended by Supreme Court Order No. 16-8300-008, effective for all cases pending or filed on or after December 31, 2016.]

USE NOTES
ANNOTATIONS
The 2016 amendment, approved by Supreme Court Order No. 16-8300-008, effective December 31, 2016, updated the instruction to more accurately reflect the elements of ignorance or mistake of fact, revised the Use Notes, and rewrote the committee commentary; deleted “Evidence has been presented that” and added “An issue in this case is whether”, after “the defendant did not”, deleted “[act] [fail to act] under” and added “have”, after “those facts”, added “at the time of the alleged conduct”, after “whether the defendant’s”, deleted “[action] [or] [failure to act]” and added “alleged conduct”, after “resulted from a”, deleted “mistaken” and added “reasonable”, and after “belief”, deleted “of” and added “in”; in Use Note 2, after “Describe”, deleted “the facts constituting a mistake of fact” and added “what the defendant claims he or she believed”.

The 2009 amendment, approved by Supreme Court Order No. 09-8300-028, effective September 16, 2009, in the committee commentary, deleted the former first sentence of the last paragraph and added the current first sentence of the last paragraph, but did not amend the jury instruction.

The 1997 amendment, effective January 1, 1997, substituted the language beginning "The burden" for language relating to the defendant acting or failing to act under an honest and reasonable belief in the existence of the facts, added Use Note 1, redesignated former Use Note 1 as Use Note 2, and deleted former Use Note 2 relating to giving bracketed alternatives.

Sufficient evidence for mistake-of-fact instruction. — Where defendant, who was very intoxicated, checked into a motel, paid for a room, was issued a key card without a room number on it, was assigned Room 125, entered Room 121 by breaking a window, and was found by the police using Room 121 as one for which had paid, the evidence was sufficient to support an instruction on mistake of fact. State v. Contreras, 2007-NMCA-119, 142 N.M. 518, 167 P.3d 966.

Mistake of fact common-law defense. — At common law, an honest and reasonable belief in the existence of circumstances which, if true, would make the act for which the person is indicted an innocent act was a good defense. State v. Gonzales, 1983-NMCA-041, 99 N.M. 734, 663 P.2d 710, cert. denied, 464 U.S. 855, 104 S. Ct. 173, 78 L. Ed. 2d 156 (1983).

Mistake of fact concept included in intent instruction involving mental state. — Whenever an intent instruction involving the defendant's mental state is given, the mistake of fact concept is automatically included and does not merit a separate instruction. State v. Griscom, 1984-NMCA-059, 101 N.M. 377, 683 P.2d 59.

Instruction given where evidence defendant believed fact that, if true, made conduct lawful. — To entitle himself to an instruction on mistake of fact, there must be some evidence that at the time in question, the defendant entertained a belief of fact that, if true, would make his conduct lawful. State v. Gonzales, 1983-NMCA-041, 99 N.M. 734, 663 P.2d 710, cert. denied, 464 U.S. 855, 104 S. Ct. 173, 78 L. Ed. 2d 156 (1983).

Defendant was entitled to a mistake of fact instruction on criminal sexual penetration charges. — Where defendant was charged with two counts of criminal sexual penetration (CSP), and where the state presented two theories to the jury, that defendant used physical force or physical violence without the victim's consent, or in the alternative, defendant knew or had reason to know that the victim did not have the capacity to consent to the alleged acts, and where defendant proffered a jury instruction on mistake of fact which was denied by the district court judge who concluded that the unlawfulness and elements instructions were sufficient, the district court erred in denying defendant's instruction, because, based on the jury given jury instructions, the jury was required to first consider the victim's state of mind and decide whether she consented to the alleged acts, and if she did not consent, the jury was required to view the evidence from defendant's perspective to determine whether the manner in which the victim expressed her lack of consent was so equivocal as to cause the accused to assume that the victim consented where, in fact, she did not, and when only the unlawfulness instruction is given, the jury could convict defendant of CSP even if it found that defendant honestly and reasonably but mistakenly believed that the victim consented to the use of physical force or physical violence. Defendant was entitled to an instruction on his mistake of fact defense because his mistaken belief would negate the intent necessary to convict him for using physical force or physical violence to penetrate a person who did not have the capacity to consent. State v. Apodaca, 2021-NMCA-001, cert. granted.

Defendant was entitled to a mistake of fact instruction on tampering with evidence charge. — Where defendant was charged with two counts of criminal sexual penetration (CSP) and tampering with evidence, and where the jury was instructed that defendant was guilty of tampering with evidence if the jury found beyond a reasonable doubt that defendant destroyed, changed, or hid blood evidence by cleaning the vehicle where the alleged CSP occurred, and where the district court, claiming that the unlawfulness and elements instructions were sufficient, denied defendant's proffered instruction on mistake of fact, the district court erred in denying defendant's instruction, because if the jury were to conclude that defendant, at the time that he cleaned the vehicle, had an honest and reasonable belief that the victim had the capacity to consent to the alleged sexual acts and did consent to defendant's actions, the jury could also reasonably conclude defendant necessarily lacked the intent necessary to convict him for tampering with evidence. State v. Apodaca, 2021-NMCA-001, cert. granted.

Instruction improper where evidence showed active "aiding and abetting." — In a prosecution for attempted murder, the defendant's tendered mistake-of-fact instruction, based on his "omission to act" did not correctly state the law applicable to the case, where the evidence showed that the defendant actively "aided and abetted" the crime. State v. Johnson, 1985-NMCA-074, 103 N.M. 364, 707 P.2d 1174.

Requested instruction on mistake of fact in bank robbery properly refused. — Where the defendant knew that another was going to rob the bank, went to the bank, not to stop the robbery, but with the purpose of preventing any shooting, a requested instruction on mistake of fact was properly refused. State v. Roque, 1977-NMCA-094, 91 N.M. 7, 569 P.2d 417, cert. denied, 91 N.M. 4, 569 P.2d 414.

As in embezzlement prosecution, defendant believed he was authorized to expend public funds. — The defendant is not entitled to a mistake-of-fact instruction in a prosecution for embezzlement for using public funds belonging to his employer to pay for the travel expenses of his spouse, who is not employed by the same employer and who has not performed any public service, on the ground that he believed in good faith he was owed money by his employer, where there is no evidence that he in fact believed he possessed the legal authority to expend public funds for his spouse's travel. State v. Gonzales, 1983-NMCA-041, 99 N.M. 734, 663 P.2d 710, cert. denied, 464 U.S. 855, 104 S. Ct. 173, 78 L. Ed. 2d 156 (1983).

Refusal of mistake-of-fact instruction in child abuse case is proper because criminal intent is not required to commit child abuse, and since the accused's mental state is not essential to the crime, mistake of fact would not be a defense thereto. State v. Fuentes, 1978-NMCA-028, 91 N.M. 554, 577 P.2d 452, cert. denied, 91 N.M. 610, 577 P.2d 1256.

Deficient instructions on mistake of fact. — Although the defendant offered an inadequate instruction on mistake of fact, the doctrine of fundamental error required reversal of the defendant's embezzlement conviction, since under the given instructions, the defendant could have been convicted for innocent conduct involving the application of certain payments towards the balance allegedly due him by the alleged victim. State v. Bunce, 1993-NMSC-057, 116 N.M. 284, 861 P.2d 965.

Law reviews. — For article, "Sufficiency of Provocation for Voluntary Manslaughter in New Mexico: Problems in Theory and Practice," see 12 N.M.L. Rev. 747 (1982).

For annual survey of New Mexico law relating to criminal law, see 13 N.M.L. Rev. 323 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law § 93.

Mistaken belief in existence, validity or effect of divorce or separation as defense to prosecution for bigamy, 56 A.L.R.2d 915.

Mistake or lack of information as to victim's age as defense to statutory rape, 8 A.L.R.3d 1100.

Criminal offense of selling liquor to minor or permitting him to stay on licensed premises as affected by ignorance or mistake regarding his age, 12 A.L.R.3d 991.

Mistake or lack of information as to victim's age as defense to statutory rape, 46 A.L.R.5th 499.

22 C.J.S. Criminal Law § 47.

.

Almost happened to me back in 65. I was stationed in California and had some Christmas leave so I thought I'd go home and visit my folks in Seattle. I thought it would be a nice surprise. Got there about 3 am. Used my key to let myself in. Was going to go upstairs to my bedroom and sack out, and surprise them in the morning. Got about halfway up the stairs and the light came on. Dad was at the top of the stairs with his .410. Scared the **** out of me. Scared him too. Fortunately he had more sense than me and turned on the light.

Actually, LEOs are involved in accidental, unintentional, and negligent shootings at a far higher rate than the general public. The term "unfortunately common" strikes me as reasonable and appropriate.

I am a retired cop and have no wish to attack LEOs, but the facts are the facts. Training is better than it has ever been, but the human element remains. Cops are people and people respond unpredictably.

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Life of the party until 8:00PM

Been living in Mn twenty years now and have met some peculiar cops.Often wonder if the people who sign off on them should face charges.After letting the youths know they can get away with anything you then give a fifty year old woman the job of letting them know they cant.Or the fello who reached across his partner and shot the Aussie woman or the brave hearted soul who shot through the apartment door down in Rochester. Always gonna be a tragedy when regardless of whats between their legs a ***** has a gun.

So should every death result in a homicide prosecution?

What about self defense against a home invader or car jacking?
Every car accident?
Every medical procedure?
Every workplace accident?
The guy my dad knew who suffered a fatal head injury when he fell out of the cherry picker?

Prison is for people who intentionally and with malice do harm to others, both to punish them and to deter others.

How does punishing accidents (which by definition are unintentional) with prison accomplish either? Where does it cross the line of serving a public good into vindictiveness?

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Common sense isn't so common.

In common legal usage, 'homicide' is the killing of one human being by another. Unlawful homicides are murder or manslaughter at criminal law; lawful homicides are 'excusable' or 'justifiable.' Unlawful homicide at civil law is 'wrongful death.'

Not all deaths are investigated as crimes. Betty White’s death was expected and likely attended.

Unattended deaths do receive some level of investigation. Obviously not all are prosecuted.

Drunk driving deaths are accidents, and are usually prosecuted.

Other accidents can be prosecuted, if there is clear negligence.

In this case, and the one I mentioned, there is a reluctance to prosecute if the victim is related to the killer, because “he feels bad”. If he killed someone else’s kid he would still feel bad, but more people would be ok with prosecuting him.

Every case should be decided on its own merits.

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“What you got, ain’t new.”