11. In a common-law jurisdiction, if the defendant is charged with murder and arson, he should be

At common law, murder is defined as the unlawful killing of another human being with malice aforethought. Malice can be shown by having an intent to kill, or by having an intent to inflict great bodily harm. Malice can also be implied in actions that demonstrate gross recklessness toward human life. In addition, felony murder is the killing of someone during the commission of a violent felony. Arson is defined at common law as the malicious burning of the dwelling of another. Malice is proved by showing a reckless disregard for an obvious or high risk that the structure would burn. At common law, a structure is still a dwelling if it is used for other purposes besides sleeping, such as a business.

A is correct. In this case, the defendant maliciously burned the clerk's dwelling and, during the commission of that arson, caused the clerk's death. Additionally, the defendant acted with malice aforethought when he caused the clerk's death. Deliberately driving a car into a gasoline pump demonstrates a reckless indifference to a high risk to human life; this is sufficient for a finding of malice aforethought for the murder charge. The defendant could be convicted of either murder with malice aforethought or felony murder with arson as the underlying felony. In addition, the defendant's driving his vehicle into a gasoline pump also had the foreseeable consequences of igniting the gasoline, creating a ball of fire, and burning the building the clerk was in. Therefore, the defendant is guilty of both arson and murder.

B is incorrect. The defendant's actions were not merely negligent, which would support only an involuntary manslaughter charge; they were done with the type of reckless disregard for human life that would qualify the clerk's homicide as murder committed with malice aforethought. In addition, this answer is incorrect because the defendant could be convicted of felony murder. Additionally, because the defendant maliciously burned the clerk's dwelling, he should also be convicted of arson. The charge of arson does not require an intentional setting of a fire. It is sufficient for the burning to be foreseeable from a defendant's action, such as deliberately driving a vehicle into gasoline pumps.

C is incorrect. Involuntary manslaughter is a killing committed with recklessness or criminal negligence, or during the commission of an unlawful act. Here, the defendant's actions rise to the level of murder because the defendant maliciously burned the clerk's dwelling and, during the commission of that arson, caused the clerk's death and thus could be convicted of felony murder. Additionally, the defendant acted with malice aforethought when he caused the clerk's death. Deliberately driving a car into a gasoline pump demonstrates a reckless indifference to a high risk to human life; this is sufficient for a finding of malice aforethought for the murder charge. The defendant committed murder and not involuntary manslaughter.

D is incorrect. As discussed above, the defendant, in this case, is guilty of and should be convicted of both offenses.