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Furthermore, it is not merely their actions that make up death penalty crimes, but also the culpable mental state, causation and the social harm. If one of those is missing, you cannot establish the crime. For example:
A is standing on railroad tracks. B fires a bullet at A. A is then struck by a train and killed. For the crime of murder, B has committed the actus reus - i.e., the physical act; and had the culpable mental state, or mens rea (here, "intent"); and the social harm (A's death) occurred; however, causation is lacking, since it was the train rather than the bullet that killed A. Therefore, B is not guilty of murder.
A is crossing the street at the crosswalk with a "Walk" sign. B is driving perpendicular to A's path and has a red light. B's brakes fail, and he strikes and kills A. For the crime of murder, B has committed the actus reus; the social harm (A's death) occurred; and there was causation, in that B's physical act led directly to A's death. However, B had no intent to kill; rather, his brakes failed, and therefore he is not guilty of murder.
Thus, it is not merely a person's actions that make someone a criminal, but a combination of factors.
Finally, as stated earlier, society cannot treat a person as a criminal unless that person has been found guilty beyond a reasonable doubt, where the state has proven every element of the crime beyond a reasonable doubt. A person is innocent until proven guilty, and therefore must be treated that way. If the person has been found not guilty, he is not - as a matter of law - a criminal.
Sometimes, the status of the victim makes a killing death qualified. Murder of a child and murder of a cop in the line of duty are two common types.