The test of implied malice in an unintentional killing is actual appreciation of a high degree of risk that is objectively present. There must be a high probability that the act done will result in death, and it must be done with a base antisocial motive and with wanton disregard for life.
Patrick Berry was charged with murder and negligent keeping of a mischievous animal after his pit bull attacked and killed a child. Patrick Berry knew that the Soto family, with whom he shared a lot in close proximity, had four small children. He had explained, falsely, that the dog was not a threat due to the partial fence in the yard. Prior to the attack, Patrick Berry had described the dog to others as a killer and raised him and others to fight. Patrick Berry moved to dismiss the charges, claiming the evidence fell short of proving the malice sufficient for murder and that there was no evidence that the dog was mischievous or kept without ordinary care. The court denied the petition for writ of prohibition, finding homicide by omission was sufficient.
Is implied malice through omission, proven through inferences from the facts of a case, sufficient to sustain a murder charge?
The test of implied malice in an unintentional killing is actual appreciation of a high degree of risk that is objectively present. Patrick Berry was actually aware of his dog’s potential to harm human beings, proved by the fact that he kept him chained up behind a partial fence and bred him as a fighting dog. Therefore, there is sufficient evidence to justify a trial for murder on an implied malice theory. Negligent keeping of a mischievous animal may be inferred from the facts, including easy access to the area where the dog was chained and that the dog was bred to fight. Therefore, there is sufficient evidence to justify a trial for negligent keeping of a mischievous animal.