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When Charging Murder, Is the Offense Date the Date of the Attack, or the Date of the Victim’s Death?

April 15th, 2013
By Jeff Welty

Suppose that Dan shoots Victor on January 1, and that Victor dies from his wounds, but not until January 3. When a magistrate issues an arrest warrant, or the grand jury returns an indictment, should the date of offense be listed as January 1, the date of the attack? Or January 3, the date of the victim’s death?

My view is that either one is probably fine, but that alleging a range of dates spanning the assault and the victim’s death is the best solution. Here are summaries of some relevant cases:

  • State v. Price, 310 N.C. 596 (1984) (defendant shot victim on December 17, but victim did not die until February 5; murder indictment initially listed February 5 as the offense date, but the state moved to, and was allowed to, amend the date to December 17; court characterizes this as “the date the offense occurred” and ruled that the amendment was proper as it did not substantially alter the charge; also states that “the date on the indictment for murder, if erroneous, was not an essential element of the offense” and cites G.S. 15-155, which provides that errors as to date are not fatal defects)
  • State v. Holton, 284 N.C. 391 (1973) (defendant shot victim in September, but victim did not die until December; indictment gave the September date as the date of the offense; no fatal variance between allegation and proof: “The indictment in this case stated the date on which the fatal injury was inflicted rather than the date on which the death occurred. This Court, as early as 1854 in State v. Baker, 46 N.C. 267 [(1854)], held that where an indictment charged the murder as of the date the blow was given, and the evidence revealed that the victim lived for twenty days after receiving the blow and then died, such variance was not material.”)
  • Manning v. State, 182 S.E.2d 690 (Ga. App. 1971) (indictment alleged “that defendant did kill and murder one Alvin Meeler on June 5, 1969 by shooting him with a pistol” and the court ruled that “there was no fatal variance in the allegata and probata where it appeared that Meeler was shot on June 5, 1969, but languished and died June 11, 1969”)

Sometimes a range of dates is clearly the best solution, as in some child abuse cases where the victim’s death is the culmination of a long series of events. See, e.g., State v. Duncan, 835 So. 2d 623 (La. Ct. App. 1st Cir. 2002) (original indictment in child abuse murder case alleged that the offense took place on December 19, 2000; state was properly allowed to amend the indictment to “between 12/17/96 and 12/18/2000,” the dates of the child’s birth and death; “years of abuse, mistreatment, and starvation” caused the victim’s death).

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4 Responses to “When Charging Murder, Is the Offense Date the Date of the Attack, or the Date of the Victim’s Death?”

  1. A range of dates should also apply if a husband systematically drugs his wife over time as per cases similar to Sunny Von Bulow.

  2. Dean says:

    This will be important with the new second degree murder statute, as the date the offense was committed will determine whether the crime is punished as a B1 or B2 offense for affected crimes.

    I disagree with your interpretation, because the crime is actually some form of assault unless and until the individual dies of the injuries sustained. I would therefore say the charge of murder arises at the time of death.

    This also has implications for jurisdiction. If a continuing series of assaults leading up to the death is what constitutes the actual crime, then there would be an argument that where any assault that could have contributed to the death occurred has jurisdiction, which could give multiple counties or even states jurisdiction over the crime of murder, even though the death did not occur in the county or state.

    • Jeff Welty says:

      Good and interesting points. Thanks. I agree that when there is a change in the law between the initial assault and the resultant death, it may be necessary to pinpoint a specific date when the crime took place. But absent that unusual circumstance, and given that the function of an indictment is to provide notice to the defendant of the crime charged, it seems to be that the best, fairest, and most complete manner of providing notice is by using a range of dates that spans both the beginning of the offense and the completion of it. Thanks again for your substantive and thoughtful comment.

      • Jeff Welty says:

        In at least one circumstance, when confronted with the need to pinpoint an offense date due to a change in the law, the state supreme court has ruled that the relevant date is the date of the “murderous acts,” not the victim’s death. See State v. Robinson, 335 N.C. 146 (1993) (where the common law year-and-a-day rule was abolished after the defendant’s assault on the victim but before the victim died, it would violate ex post facto principles to deprive the defendant of the benefit of the year-and-a-day rule; it would be improper to “retroactive[ly]” “deprive[ the defendant] of a defense that was allowed by the law in effect at the time he committed his murderous acts”).

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