Rescinded 1981

SSR 73-40: Section 205(a) (42 U.S.C. 405(a)).—Conviction of Homicide—Establishing Intent—Illinois

20 CFR 404.364

SSR 73-40

Where claimant for survivor benefits was convicted of murder of worker under Illinois felony statute which does not recognize degrees of murder and is not limited to instances of intentional killing, held, conviction of claimant on basis of, and in manner wholly consonant with, indictment which charges that killing was knowing and intentional, is sufficient to establish that claimant was convicted of intentional homicide within meaning of Social Security Regulations No. 4, section 404.364 and thus claimant is not entitled to benefits based on deceased worker's earnings.

R, the claimant, filed application for the lump-sum death payment following the death of his wife on October 11, 1969. Evidence established that R had been convicted of the offense of her murder "in the manner and form as charged in the indictment." The file also contains a report certifying that R was indicted "for having committed the offense of murder in that on October 11, 1969, he intentionally and knowingly shot and killed [his wife] with a gun, without lawful justification in violation of" the Illinois statutes. (Emphasis supplied.)

The offense of murder in Illinois is defined as follows in Ill. Ann. Stat. Ch. 38, §9-1 (Smith-Hurd 1964):

(a)A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:

(1)He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or

(2)He knows that such acts create a strong probability of death or great bodily harm to that individual or another: or

(3)He is attempting or committing a forcible felony other than voluntary manslaughter.

The question raised is whether R has been finally convicted of the felonious and intentional homicide of his spouse under Illinois law so as to disqualify him from receiving benefits under Social Security Administration Regulations No. 4, section 404.364.

The regulation (20 CFR 404.364) provides as follows:

A person who has been finally convicted by a court of competent jurisdiction of the felonious and intentional homicide of an insured individual shall not be entitled to monthly benefits or to the lump-sum death payment based on the earnings of such deceased individual and such felon shall be considered nonexistent in determining the entitlement of other persons to monthly benefits or the lump-sum death payment based on the deceased individual's earnings.

Under the Illinois statute cited above, murder is not distinguished by degrees and not all murder convictions necessarily involve instances where the accused specifically intended to kill the victim. See People v. Latimer, 220 N.E. 2d 314, 317 (Ill. 1966). In Illinois a voluntary and willful act is sufficient evidence of the intent to commit the offense of murder. See People v. Cannon, 373 N.E. 2d 829, 831 (Ill. 1971).

Because it is not necessary for a conviction of felonious homicide in Illinois the accused had formed a specific intent to kill, information and documentation other than the conviction itself must be educed to determine whether R's act constituted an intentional killing of his spouse. Evidence of an indictment charging an intentional and knowing killing and of a conviction in the manner and form charged in the indictment is sufficient to establish that R was convicted of the intentional homicide on his wife and thus he is barred from receiving benefits based on his wife's earnings record.

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