SSR 73-40: Rescinded 1981

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

ills 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).

bove, 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.