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United States v. Fleming

Citation. 22 Ill.739 F.2d 945 (4th Cir. 1984)
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Brief Fact Summary.

Defendant Fleming was charged and convicted of second-degree murder for killing someone while driving under the influence of alcohol. Defendant, on appeal, maintains that the facts are inadequate to establish the malice element of murder and that he therefore should only have been charged with manslaughter.

Synopsis of Rule of Law.

Malice can be established by evidence that Defendant acted recklessly; it does not require proof that the defendant acted with ill will.


Defendant was driving with excessive speed while drunk and lost control of his car, killing Margaret Haley as a result. Defendant was convicted of second-degree murder which requires a showing of malice on the part of Defendant and timely appeals, arguing that the facts are inadequate to establish malice and therefore he should have been convicted of manslaughter at the most.


Does malice require evidence that the defendant acted with ill will toward the victim?


No. Conviction affirmed.
Malice can be established by evidence that Defendant acted with reckless disregard for the safety of others. Recklessness can be shown by evidence that Defendant’s actions were a gross deviation from a reasonable standard of care or of such a nature that a jury is warranted in inferring that Defendant was aware of a serious risk of harm to others.

The Government only needs to show that the defendant intended to operate his car in the manner that he did – with excessive speed and under the influence of alcohol- and that he did so without regard for the life of others.


This case raises the issue once again of what the difference is between murder and manslaughter and the difficulty inherent in such line drawing. The viewpoint taken by the court in United States v. Fleming is different than that of the Model Penal Code which maintains that inadvertent risk creation such as drunk driving cannot be punished as murder.

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