MN 11.38 Murder in the Third Degree–Depraved Mind–Elements

10 Minn. Prac., Jury Instr. Guides–Criminal CRIMJIG 11.38 (6th ed.)

September 2020 update

Part II. Specific Crimes

A. Crimes Against the Person

Chapter 11. Homicide

CRIMJIG 11.38 Murder in the Third Degree–Depraved Mind–Elements

The elements of this crime are:

First, the death of _____ must be proven.

Second, the defendant caused the death of _____.

[“To cause” means to be a substantial causal factor in causing the death. The defendant is criminally liable for all the consequences of (his) (her) actions that occur in the ordinary and natural course of events, including those consequences brought about by one or more intervening causes, if such intervening causes were the natural result of the defendant’s acts. The fact that other causes contribute to the death does not relieve the defendant of criminal liability. However, the defendant is not criminally liable if a “superseding cause” caused the death. A “superseding cause” is a cause that comes after the defendant’s acts, alters the natural sequence of events, and produces a result that would not otherwise have occurred.]1

Third, the defendant’s intentional act that caused the death of _____ was eminently dangerous to other persons and was performed without regard for human life. Such an act may not have been specifically intended to cause death, and may not have been specifically directed at the particular person whose death occurred, but it must have been committed in a reckless or wanton manner with the knowledge that someone may be killed and with a heedless disregard of that happening in order to find this element has been satisfied.2

Fourth, the defendant’s act took place on (or about)_____ in _____ County.

If you find that each of these elements has been proven beyond a reasonable doubt, the defendant is guilty. If you find that any element has not been proven beyond a reasonable doubt, the defendant is not guilty.


Minn. Stat. § 609.195(a).


  1. See State v. Smith, 835 N.W.2d 1 (Minn. 2013); State v. Olson, 435 N.W.2d 530 (Minn. 1989); State v. Smith, 119 N.W.2d 838 (Minn. 1962).
  2. The phrase “depraved mind” has not been included in the elements. This phrase is not susceptible of definition, except in terms of an “eminently dangerous” act and the lack of regard for human life. Since those terms are used, the further use of the words “depraved mind” is unnecessary and possibly prejudicial. The phrase “committed in a reckless or wanton manner” is drawn from State v. Lowe, 68 N.W. 1094 (Minn. 1896).