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VOLUME 7 - CHAPTER 92
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92.3 Voluntary Manslaughter

    92.3.2 Voluntary Manslaughter: General Principles

    92.3.2.1 Voluntary Manslaughter Defined
    92.3.2.2 Right To Inconsistent Defense Theory Of Voluntary Manslaughter When Defendant Denied Killing Under Oath
    92.3.2.3 Definition Of Intent To Kill

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PRACTICE NOTE:  Manslaughter is intentional homicide without malice aforethought. The most common reason for mitigation is severe provocation.  As a result of severe provocation, an intentional killing which would otherwise be classified as murder is mitigated, though not excused. This is because the killing is deemed not to be the exclusive result of the defendant’s malice, but also of provocation from another source. A killer who is enraged as a result of provocation from another cannot properly be deemed to be killing out of malice, a requirement for murder. Mitigating an intentional killing without excusing it altogether serves a dual purpose: it assigns criminal liability in view of the immediate circumstances of the defendant’s actions while retaining an incentive for persons to control their impulses even in the face of severe provocation. (See Wharton’s Criminal Law, 15th Ed., 1994, §155, pp. 346 et seq.; Perkins and Boyce, Criminal Law, 3rd Ed., 1982, pp. 82-116.)

    In order for a killing which would otherwise be murder to be reduced to manslaughter under the "rule of provocation" there are four requirements:

    (1)     There must have been adequate provocation.

    (2)     The killing must have been in the heat of passion.

    (3)     It must have been a sudden heat of passion -- that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool.

    (4)     There must have been a causal connection between the provocation, the passion, and the fatal act.  (See State v. Frederick (WA 1978) 579 P2d 390, 394.)

    In short, voluntary manslaughter is a "catch-all" concept, covering all intentional homicides which are neither murder nor so innocent as to qualify for a complete defense, such as justification or excuse. (See Perkins and Boyce, Criminal Law, 3rd Ed., 1982, pp. 102-103.)

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PRACTICE NOTE: Some cases suggest that when the defendant completely denies shooting the victim under oath, voluntary manslaughter instructions based on heat of passion or imperfect self defense are not required even on request. (See e.g., People v. Sinclair (CA 1998) 64 CA4th 1012, 1016 [75 CR2d 626]; State v. Hensen (MO 1977) 552 SW2d 378, 379 [self-defense and accident are inconsistent but both must be submitted if each is supported by the evidence unless defendant's personal testimony is relied upon to support both]; compare People v. Barton (CA 1995) 12 C4th 186, 200-01 [47 CR2d 569].) However, there are several problems with such a rule.

NOTE: To the extent that such a rule is recognized it should be limited to situations where the sworn testimony of the accused "completely obviates any basis for finding a lesser included offense." (People v. Sinclair, 64 CA4th at 1021.)

See FORECITE National™ 92.3.1.2 [Federal Circuit Model Instructions And Notes].

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 VOLUME 7 - CHAPTER 92

    92.3.2.3    Definition Of Intent To Kill