Criminal Law, Pages 346–350

State v. Small

Supreme Court of Louisiana, 2012


Defendant left her stove on and her children home unsupervised in her apartment. The stove set the apartment on fire and one her children died.

Procedural History:

Defendant pled guilty to criminal abandonment and was then found guilty of second degree murder under the state's felony murder rule.


Is defendant guilty of murder?


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[N]egligent homicide does not require a "direct act" of killing by the defendant. Negligent homicide is "the killing of a human being by criminal negligence." "Criminal negligence exists when although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances." Ordinary negligence does not equate to criminal negligence


Louisiana uses the "agency test" instead of the "proximate cause" test for felony murder, thus requiring that a "direct act" of the defendant or his accomplice commit the killing. Here, there is no direct act of killing; there is only a negative act. Thus, the felony murder rule cannot apply.

However, negligent homicide does not require a direct act of killing. There is no debate that defendant's conduct was criminally negligent, especially since should pled guilty to child abandonment. Her conduct was not required to be the sole cause of death as long as it hastened it or was a substantial factor in it. Here, there was sufficient evidence that defendant's neglect was a legal cause of her daughter's death. If her children were supervised, the fire might not have occurred or at least they may have been able to escape in time. Thus, since defendant's criminal negligence was a cause of the death, she is guilty of negligent homicide.


No, defendant is not guilty of murder but is guilty of negligent homicide. Reversed and remanded for resentencing for negligent homicide.

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