Ala. Pattern Jury Instr. (Criminal) 13A-5-40(A)(3)D

MURDER DURING RAPE IN THE SECOND DEGREE

(Or Attempt Thereof)*

(Victim Between the Ages of 12 and 16)

The defendant is charged with capital murder. The law states that an

intentional murder committed during a rape in the second degree is capital murder.

A person commits an intentional murder if he/she causes the death of

another person and , in performing the act or acts that cause the death of that

person, he/she intends to kill that person (or another person).

A person commits a rape in the second degree if he/she, being 16 years old

or older, engages in sexual intercourse with a person who is 12 years old or older,

but less than 16 years old, provided that the defendant is at least two years older

than the other person. [13A-6-62(a)(1)]

To convict, the State must prove beyond a reasonable doubt each of the

following elements of intentional murder during a rape in the second degree:

(1) That (name of deceased) is dead;

(2) That the defendant (name of defendant) caused the death of (name of

deceased) by (state the alleged act, e.g., shooting) him/her;

(3) That in committing the act(s) that caused the death of (name of

deceased) the defendant intended to kill the deceased or another

person;

(4) That the defendant engaged in sexual intercourse with (name of

victim);

(5) That the defendant was 16 years old or older at that time;

(6) That the defendant was at least two years older than (name of victim);

(7) That (name of victim) was 12 years old or older, but less than 16 years

old, at that time; (AND)

(8) That the murder took place during the rape.

Sexual intercourse has its ordinary meaning and occurs upon any

penetration, however slight; emission is not required. [13A-6-60(4)]

During means in the course of the commission of or in connection with (or

in immediate flight from) the commission of the rape. [13A-5-39(2)]

A person acts intentionally when it is his/her purpose to cause the death of

another person. The intent to kill must be real and specific.

If you find from the evidence that the State has proved beyond a reasonable

doubt each of the above elements of the offense of intentional murder during a

rape in the second degree, as charged, then you shall find the defendant guilty of

capital murder.

If you find that the State has failed to prove beyond a reasonable doubt any

one or more of the elements of the offense of intentional murder during a rape in

the second degree, then you cannot find the defendant guilty of capital murder.

(If lesser-included offenses are included, the court should instruct on

those offenses at this point.)