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VOLUME 7 - CHAPTER 92
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92.4 Involuntary Manslaughter
92.4.4 Involuntary Manslaughter: Lesser Offenses
92.4.4.1 Unintentional Killing In Heat Of Passion Or Hot Blood As Mitigated Homicide
92.4.4.2 Involuntary Manslaughter Is A Lesser Included Offense Of Murder Based On Commission Of An Assault Or Battery Without Intent
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 7 - CHAPTER 92
92.4.4.1 Unintentional Killing In Heat Of Passion Or Hot Blood As Mitigated Homicide
PRACTICE NOTE: People v. Shannon (CA 1996) 46 CA4th 1365, 1367 [54 CR2d 416] held that voluntary manslaughter is not a lesser included of implied malice murder based on heat of passion. (But see
FORECITE National™ 92.8.3.6 [Provocation/Heat Of Passion Can Reduce An Unintentional Homicide Murder To Manslaughter].) Shannon's conclusion was based, in part, upon the fact that voluntary manslaughter requires an intent to kill and a killing occurring with implied malice does not involve intent to kill. (But see FORECITE National™ 92.8.3.2 [Unintentional Murder: Negation Of Malice By Imperfect Self Defense].)However, Shannon did not consider and resolve the question of whether a non-intentional killing committed in the heat of passion may be reduced to involuntary manslaughter. The impediment of a required intent to kill -- which Shannon held precluded reduction of the killing to voluntary manslaughter -- is not present in involuntary manslaughter and, hence, there is, perhaps, a stronger argument for reduction of such an offense to involuntary manslaughter.
See also
FORECITE National™ 92.8.3.6 [Provocation/Heat Of Passion Can Reduce An Unintentional Homicides To Manslaughter].RESEARCH NOTES:
See generally, FORECITE National™ 305.13.1 [Manslaughter].
FORECITE National™
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VOLUME 7 - CHAPTER 92
92.4.4.2 Involuntary Manslaughter Is A Lesser Included Offense Of Murder Based On Commission Of An Assault Or Battery Without Intent
PRACTICE NOTE: Involuntary manslaughter may be based upon the commission of a non-inherently dangerous felony. (See FORECITE National™ 92.4.3.2 [Noninherently Dangerous Felony As Basis For Instruction On Involuntary Manslaughter As Lesser Offense].) However, involuntary manslaughter may also be based upon the inherently dangerous felonies of assault or battery. Such a result is based upon the following analysis:
1) A second-degree felony murder conviction may not be sustained based on a killing which occurs during the commission of a felony which is an integral part of the homicide such as assault or battery. (People v. Ireland (CA 1969) 70 C2d 522, 539 [75 CR 188]; see also FORECITE National™ 92.9.5 [Felony Murder: Merger Doctrine As Defense Theory].)
2) If there was no intent to kill the defendant may not be convicted of voluntary manslaughter. (See People v. Coad (CA 1986) 181 CA3d 1094, 1106 [226 CR 386]; see also People v. Rhodes (CA 1989) 215 CA3d 470, 476, fn 3 [263 CR 603].)
3) In light of the above and to avoid absurd results, the defendant who commits an unintentional killing without malice during the commission of an assault or battery, should be liable for conviction of involuntary manslaughter. (People v. Cameron (CA 1994) 30 CA4th 591, 603-05 [36 CR2d 656] [disapproving Rhodes.)
In sum, even if the defendant intentionally commits an assault with a deadly weapon, if there was no intent to kill, then instruction upon involuntary manslaughter may be appropriate. (See People v. Welch (CA 1982) 137 CA3d 834, 840-41 [187 CR 511]; see also State v. Fleming (NC 1979) 251 SE2d 430, 433.)
RESEARCH NOTES:
See generally, FORECITE National™ 305.13.1 [Manslaughter].
RELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 92.4.1.2 [Federal Circuit Model Instructions And Notes].