S v Mshumpa

Last updated

S v Mshumpa and Another was a South African case with special significance for the law of persons and succession.

Contents

Background

Melissa Shelver, a young pregnant woman, was shot in the abdomen with the (successful) intention of killing her unborn child. The shooter and first accused, Ludwe Mshumpa, had entered into a conspiracy with the baby's father and second accused, David Best, who had paid him to commit the crime. In order to make the attack appear genuine, and thus to clear himself of suspicion, Best had arranged for Mshumpa to shoot him as well. Both Best and Shelver barely survived. [1]

Case

The court was first tasked with determining whether or not Mshumpa should be convicted of the attempted murder of the mother. It found that the risk of death to the mother was eminently foreseeable in the act of shooting (it was established that she would have died had she not received medical treatment), [2] and that dolus eventualis could not be excluded merely because the shooter's intention was only to kill the foetus. As a result, Mshumpa was found guilty of the attempted murder of Shelver. [3]

The court's next consideration was whether to convict Mshumpa of the attempted murder of Best. As neither suicide nor attempted suicide is a crime in South Africa, [4] Best could not be found guilty as co-perpetrator of his own attempted murder. [5] Mshumpa, however, was convicted, along the same lines as his conviction for the attempted murder of Shelver; he must have foreseen that there was a risk of death if he shot Best. [6] The fact that Best had consented to be shot did not render such shooting lawful. [7] [8]

The court also had to determine whether Mshumpa's intentional killing of Shelver's unborn child amounted to the crime of murder. Because this would entail extending the definition of "murder," and because such extension would offend the constitutional principle of legality, [9] [10] [11] [12] the court declined to do, reasoning that the legislature was better suited to broaden "murder" to include the killing of an unborn child. [13]

Related Research Articles

Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for however long they have lived or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes for which, in some countries, a person could receive this sentence include murder, torture, terrorism, child abuse resulting in death, rape, espionage, treason, drug trafficking, drug possession, human trafficking, severe fraud and financial crimes, aggravated criminal damage, arson, kidnapping, burglary, and robbery, piracy, aircraft hijacking, and genocide, crimes against humanity, war crimes, severe cases of child pornography, or any three felonies in case of three-strikes law. Life imprisonment can also be imposed, in certain countries, for traffic offences causing death. Life imprisonment is not used in all countries; Portugal was the first country to abolish life imprisonment, in 1884.

Attempted murder is a crime of attempt in various jurisdictions.

Transferred intent is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible. To be held legally responsible, a court typically must demonstrate that the perpetrator had criminal intent, that is, that they knew or should have known that another would be harmed by their actions and wanted this harm to occur. For example, if a murderer intends to kill John, but accidentally kills George instead, the intent is transferred from John to George, and the killer is held to have had criminal intent.

An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur. Attempt to commit a particular crime is a crime, usually considered to be of the same or lesser gravity as the particular crime attempted. Attempt is a type of inchoate crime, a crime that is not fully developed. The crime of attempt has two elements, intent and some conduct toward completion of the crime.

Lewis Moran was an Irish-Australian organized crime figure and patriarch of the infamous Moran family of Melbourne, Victoria, Australia. Notable for his involvement in the Melbourne gangland killings, Moran was shot dead in The Brunswick Club Hotel in Melbourne on 31 March 2004. His murder occurred one week after the funeral of fellow Melbourne underworld criminal and suspected hitman Andrew Veniamin.

Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another with the intention to cause either death or serious injury unlawfully. The element of intentionality was originally termed malice aforethought, although it required neither malice nor premeditation. Baker, chapter 14 states that many killings done with a high degree of subjective recklessness were treated as murder from the 12th century right through until the 1974 decision in DPP v Hyam.

State v. Mitchell, 170 Mo. 633, 71 S.W. 175 (1902), is a precedent-setting decision of the Supreme Court of Missouri which is part of the body of case law involving the prosecution of failed attempts to commit a crime. In United States law, cases involving failed criminal attempts can bring up interesting legal issues of whether the crime was unsuccessful due to factual impossibility or to legal impossibility.

An impossibility defense is a criminal defense occasionally used when a defendant is accused of a criminal attempt that failed only because the crime was factually or legally impossible to commit. Factual impossibility is rarely an adequate defense at common law. This is not to be confused with a 'mistake of fact' defence, which may be a defence to a specific intent crime like larceny.

Child destruction is the name of a statutory offence in England and Wales, Northern Ireland, Hong Kong and in some parts of Australia.

In the United States, the law for murder varies by jurisdiction. In many US jurisdictions there is a hierarchy of acts, known collectively as homicide, of which first-degree murder and felony murder are the most serious, followed by second-degree murder and, in a few states, third-degree murder, which in other states is divided into voluntary manslaughter, and involuntary manslaughter such as reckless homicide and negligent homicide, which are the least serious, and ending finally in justifiable homicide, which is not a crime. However, because there are at least 52 relevant jurisdictions, each with its own criminal code, this is a considerable simplification.

Fetal abduction refers to the rare crime of child abduction by kidnapping of an at term pregnant woman and extraction of her fetus through a crude cesarean section. Dr. Michael H. Stone and Dr. Gary Brucato have alternatively referred to this crime as "fetus-snatching" or "fetus abduction." Homicide expert Vernon J. Geberth has used the term "fetal kidnapping." In the small number of reported cases, a few pregnant victims and about half of their fetuses survived the assault and non-medically performed cesarean.

The 2011 Hectorville siege took place between the hours of 2:30 a.m. and 10:30 a.m. on Friday, 29 April 2011, at the small suburb of Hectorville, east of Adelaide in the state of South Australia, Australia. It began after a 39-year-old resident of the suburb, later identified as Donato Anthony Corbo, entered his neighbours' property and shot four people, killing three and severely wounding one. An eight-hour stand-off with police followed, during which time he shot and wounded two officers. The stand-off culminated in his arrest by members of the Special Tasks and Rescue unit of South Australia Police.

The law of persons in South Africa regulates the birth, private-law status and the death of a natural person. It determines the requirements and qualifications for legal subjectivity in South Africa, and the rights and responsibilities that attach to it.

<i>Shattered</i> (Casey book) True crime book by Kathryn Casey

Shattered: The True Story of a Mother's Love, a Husband's Betrayal, and a Cold-Blooded Texas Murder, by author and novelist Kathryn Casey, is a true-crime account of the killing of a pregnant woman whose body was discovered in 1999 in an upstairs closet in her home in Katy, Texas, near Houston. The book was published by HarperCollins in June 2010. Ms. Casey details numerous reasons that prove no one except David Temple had either motive or opportunity.

South African criminal law is the body of national law relating to crime in South Africa. In the definition of Van der Walt et al., a crime is "conduct which common or statute law prohibits and expressly or impliedly subjects to punishment remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted." Crime involves the infliction of harm against society. The function or object of criminal law is to provide a social mechanism with which to coerce members of society to abstain from conduct that is harmful to the interests of society.

<i>R v Gnango</i> British legal case

Regina v Armel Gnango[2011] UKSC 59 is the leading English criminal law case on the interaction of joint enterprise, transferred malice, and exemption from criminal liability where a party to what would normally be a crime is the victim of it. The Supreme Court held, restoring Gnango's conviction for the murder of Magda Pniewska, that he was guilty of murder notwithstanding the fact that he had not fired the shot which killed Pniewska during the shoot out which led to her death, and that the fatal shot had been fired by his opponent in an attempt to kill him. The judgment of the Supreme Court has been criticised over the alleged extent to which it was designed to mollify public opinion, and in the context of debates over the nature of the doctrine of joint enterprise.

Criminal procedure in South Africa refers to the adjudication process of that country's criminal law. It forms part of procedural or adjectival law, and describes the means by which its substantive counterpart, South African criminal law, is applied. It has its basis mainly in English law.

R v Peverett is an important case in South African criminal law, heard on March 7, 1940. The appellant's attorneys were Renaud & Mooney, Durban, and Kannemeyer & Jeffreys, Bloemfontein.

The Federico murder case was a criminal case which took place in Chesterfield County, Virginia, United States, in which Josh Federico shot his wife, Sarah, killed her boyfriend Lawrence Howell, and attempted to kill her unborn child. Following his arrest, Federico conspired with family members and friends to hire someone to kill his father-in-law and brother-in-law. Five people have been implicated in these crimes.

<span class="mw-page-title-main">Murder of Antonio Santiago</span> Murder of an infant during an attempted robbery

One-year-old Antonio Santiago was murdered on March 21, 2013, during an attempted robbery in Brunswick, Georgia, United States. As Santiago and his mother, Sherry West, were returning home from the post office, they were confronted by two youths, 15-year-old Dominique Lang and 17-year-old De'Marquise Elkins. Elkins, who had previously shot another victim he tried to rob, pointed a gun at West and demanded money. When she did not comply he fired two .22-caliber bullets, one of which grazed her head, and the other of which went through her leg. He then shot Santiago in the face, killing him. The murder received national as well as international attention due to the victim's young age.

References

Notes

  1. ↑ S v Mshumpa at 2
  2. ↑ S v Mshumpa at 2
  3. ↑ S v Mshumpa at 66
  4. ↑ Ex parte Die Minister van Justisie: In re S v Grotjohn
  5. ↑ S v Mshumpa at 67
  6. ↑ S v Mshumpa at 67
  7. ↑ S v Mshumpa at 67.
  8. ↑ S v Robinson 1968 (1) SA 666 (AD).
  9. ↑ Constitution, s 35(3)(1).
  10. ↑ R v Sibiya at 256H-257A.
  11. ↑ S v Von Molendorff at 169C-170D.
  12. ↑ S v Mshumpa at 54-55.
  13. ↑ S v Mshumpa at 54.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.