omission in order to be first degree murder there has to be specific intent that your mission is intended to kill you absolutely and so if you have the specific intent to kill  we back into the cases like councilman you know no it's a man on the no your honor basically what you're doing is it's the whole mission is designed to kill somebody and so it's just one of the means to get to a very i get the get to that point the yarra just want to be correct that there's a specific it had to kill but that doesn't necessarily mean that it has to be a lesser included a first degree murder it can also be a lesser included of second degree murder in maryland that in degree murder one of the ways in which it can occur is also i thought the an intent to murder is first degree it because second degree doesn't need specific intent well there's to four different types of mens rare or second degree and one of them still be second then murder but but the only mission falls into the category you know the supreme court said you know when you take your finger like this with a gun trigger you know like that's really could be said that's not force physical action that leads to the chain of events and a shit positive unaware of the word to use positive physical action that then in a couple steps maybe leads to that force on the person but not fit the only difference between assault with intent to murder and murder is that the baby died if the baby had lived it could have been convicted and that some act novel mission i think is you more you and then for the government to the forces issue the government has to assert that no force in the positive exertion no force equals indirect just yet absolutely are you summed up by argument or mechanism or a tool we don't have a case in maryland not one with an omission i confine your honor are you talking about the fourth circuit lorad first hurdle we do because we have simpkins versus state in which it was surely the act the prohibition doing nothing failing to feed the child starvation that resulted in debt and that was a person sent in that was murder and assault with intent to murder is a lesser included murder it's in terms of being a force clause is the force necessary to kill somebody that's reported kept focusing on the poison killed them the bullet killed but and the intermediary acts they do not  have to have force there is no force here we're not talking about in direct versus direct there's nothing it's just not logical your honor to say that not lifting a finger doing out there sitting on a couch is physical the first degree murder just sitting on there is more to it than that nor bringing about somebody who's death by something you have done and maybe putting the bed in the grip maybe in the crib tennessee court of appeals defined it as one which could only be done by a probate it act so it can't be that the supreme court decided an issue which never even came up particularly when you have a case like that  so they don't even worry about it is the act of in point clark poison knowingly as a device to cause physical harm so the force is the physical harm that the harm three weeks you think that would sustain a conviction absolutely honor because it's against vs stay it well that the what the court bocce star was the starvation but not doing anything they didn't focus on putting the baby in the bed and it resulted in her action and that in turn incorporates assault with intent to murder so really there is no of permitted act require always is though isn't there almost always there is some physical action that the culprit takes at some point at some point and then so is that what forth is what is cause causation of the injury and here like you said because they should have the injury the reason that the baby die is that because the parent put the baby in the bed let's even take that example it's because an injury without applying force in the common law sense and so what they do is they work backwards if it's you have the mens rea of intent to kill and then you kill or the person dies whatever it is the force the injury is the evidence of force and all indirect means is they don't discuss as they it's matter of fact they quote a fake you know the criminal law t that with the demise of the residual the government is free i really hard to cram everything into the force that it does a big dog and there is an easy fix here congress can easily resolve this problem by saying he see or even by simple omission to act where there is a duty to act as where a hospital attendant fails to warn his blind patient that he is headed for an open window the bit that is that's in maryland your honor that's the maryland for inaction it's not lifting a finger no there does not have to be an affirmative act but it doesn't strike really in common sense that that answer makes sense doesn't get it goes on and i would agree if you were hardball variety whereas assault with intent to murder is an alternate or can be viewed as a lesser included offense of second degree murder but only second degree murder wires the specific in maryland requires the use of force because as the pieces make clear including redolent and jenkins is just shy of murder it is first or second degree on will be a different situation of just an individual walking by and not rescuing the into but you could not have a charge there in the imagine a scenario where the engine is just lying on the floor there could not be any charge of assault situations where the specific intent to murder but wait one second i'm going to go back to my hypothetical yes your honor this baby couldn't wall correct correct your honor what if you let the door wide open what if you open the door to your house a put the baby on  some confinement or necessity for confinement you said yes well i'm proposing that there isn't any confinement and you say that would suffice as well with abandonment and other yes i mean confinement is not if you could just put somebody down and walk away from them if you can just leave them in the middle of four they'd be convicted for assault with intent to murder we're seventy force required and then the force here is the two other elements beyond the intent to murder of this crime you have the knesset necessity here for an assault made by the defendant and committed with intent to murder those are the three on it as stated in franklin but then the best right but the but the was at issue in simpson's it is a lesser included offense of a very specific type of second degree murder which is murder millions specific intent to kill the difference in that respect the between second and first degree murder is the degree of court placed the force requirement in the causation of the entry and were due and as a consequence of any means that leads up to injury or death they say it's impossible to have injury or death without food and as a consequence when you have a specific intent to bring him out in arrears that's a crime force where requirement it doesn't say you have to intend to kill well i would i do believe that on this other cases the discussion in robinson and otherwise in maryland my understanding is that there is a version of second degree murder in maryland that requires ten plus resolve is enough to qualify as force we do think under councilman that's correct your honor you think castleman getting counseling controls this decision yes your honor i think it is i mean there's additional support as well again and made clear that we're dealing with force capable of causing physical pain or injury and that is absolutely indispensable to an assault with intent to murder conviction in maryland the question of what force was what the force was capable murder and found that that was a violent felony there are additional cases such as united states versus smith found in north carolina voluntary manslaughter was a violent felony under the arm her career criminal act and specifically focused there intent to murder i am saying that there must be some at made by the defendant so in at me and by the defendant and committed with a specific intent to murder was what was the least that they could be done to give you some idea of what you think is very slight it is that putting the baby in the grill yes i could be your honor if you are suggesting that maybe to these terms of confinement what it but i want to be back up again and ask what if we just put the baby can't we move around on the floor and leave your response judgeships questions a didn't bogus want to cast one they said two or three times it is impossible to create to have a personal injury without force and so they say any act or intent to bring because the course focus in on the injurious and here and in the fact that injuries cause we don't suffer injury physical injury without force right now for this purpose that any any any kind of physical injury it's always force i think that isn't actually the issue of what we have under assault with intent to murder because assault with intent to murder in maryland does require that there must be the assault made by the defendant and committed with this intent so i think to the extent that i was differ well i think here this situation is that the with intent to murder essentially modifies and changes the character of the assault and that is shown in maryland cases such as where it's also considered that words opinion in the united states versus read question open tomorrow i just can't find my copy i believe they were leaving open some forms of the causation when you're dealing with a first offense is like a d y but i think it is the argument as to omissions is just like the the fact that there is a lesser included offense of a crime which i think is where the defense is sort of going with the castle and other arguments it does not mean that you can't have an aggravated version aggravated version be a violent felony charges that mr patel refers to those were just braveheart murder of the second degree so it was certainly not a lesser included of any of those i think there could be scenarios and this again though goes to sort of legal imagination because mr patel  to be the assault that was made by the defendant committed with this man's right so this is a separate post scenario than what mr intelligent going to have and again you're just not cite any a b m case that relies on the murder case and the specific backs of the case there was a reckless murder but the court may very clear that assault within that second degree murder can also happen with an intent to kill and an act of omission in fact they that's murder they say decided palace versus state in fact that was an assault with intent to murder conviction so well how do you handle how do you handle that cashman which said maybe three times or two times that any bodily injury or death is a product of force but you are you have impossible and they said it's impossible to have i believe injury or death without force but it's a two things have no work because then we're just talking about the result bizarrely interim that's the reason that's a residual if you intend and carry out an assault there are other elements but i'm talking about the force aspect worst aspect and not in the means by which you do it the force is the accomplishment you are violent and is the force and they say the fear worse is inherent in the widely injury about a death you fraught route of violent crime eats that's the logical yonder do with due respect if that is the law but i also wanted to point out that i think we can agree that are not resolving the issue of whether physical injury necessarily require violent physical force and then again we have middle ten and that came after the council had it recently in the in the court said there that necessarily requires the physical force so that's the law of this circuit it is simply not the law to every physical injury that you fall requires the use of force and it's not logical and we have merely case law specifically say that second degree murder which includes assault with intent to kill can be committed by the act of omission how and you are one how do you bring up out bodily injury or death without force it was that those were the facts but then you have to look at what the court says the light makes clear that had not been that way a second degree murder is a broader statute they didn't bring that one under the intent second murder includes intent offensive touching yet the court still said monday legal research skills tell us that it can happen that way because the court had set it up that it could happen by offensive touch and we have far more than dick you know she had issue we have