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92.8 Murder: Unintentional Murder (Malice/Depraved Heart)

    92.8.3 Unintentional Murder: Defenses And Defense Theories

    92.8.3.1 Unintentional Murder: Defense Of Mutual Combat
    92.8.3.2 Unintentional Murder: Negation Of Malice By Imperfect Self Defense
    92.8.3.3 Unintentional Murder: Justification
    92.8.3.4 Unintentional Murder: Excuse
    92.8.3.5 Unintentional Murder: Accident
    92.8.3.6 Provocation/Heat Of Passion Can Reduce An Unintentional Homicide Murder To Manslaughter
    92.8.3.7 Intoxication To Negate Mental State Required For Unintentional Murder
    92.8.3.8 Unintentional Murder: Treatment By Spiritual Means As Defense Theory
    92.8.3.9 Unintentional Murder: Mental, Medical Or Physical Impairment Of Defendant
    92.8.3.10 Unintentional Homicide: Additional Defenses And Defense Theories

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     92.8.3.2    Unintentional Murder: Negation Of Malice By Imperfect Self Defense

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    See NCJIC Chapter 254 [Excuse: Duress/Coercion, Necessity, Choice Of Evils, Etc.].

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    See NCJIC 252.2 [Accident].

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PRACTICE NOTE: If provocation, heat of passion, or extreme mental or emotional disturbance cannot reduce an unintentional homicide to voluntary manslaughter then an intentional killing committed under such circumstances will be treated as a less serious offense (i.e., voluntary manslaughter) than an unintentional homicide under the same circumstances. This result would violate the 8th Amendment of the federal constitution and, hence, the jury should not be precluded from finding the defendant guilty of voluntary manslaughter for an unintentional killing committed in the heat of passion, etc.

    People v. Shannon (CA 1996) 46 CA4th 1365 [54 CR2d 416] held that under the California statute, intent to kill is required for conviction of voluntary manslaughter. However, the court expressed concern over the fact that second-degree murder requires a lesser state of mind, a conscious disregard, and recommended that the California Supreme Court consider the issue. The problem which the Shannon court recognized was that (1) an intentional killing with provocation is voluntary manslaughter, but an unintentional (conscious disregard) killing with the same provocation is second-degree murder, meaning the greater crime requires the lesser mental state; and (2) nothing in the California statute (Penal Code § 192) states that an intent to kill is required for voluntary manslaughter.

    Other jurisdictions have held that a homicide does not need to be intentional before it may be reduced to voluntary manslaughter. (See e.g., U.S. v. Paul (9th Cir. 1994) 37 F3d 496, 500 [voluntary manslaughter may be without intent, as where extremely reckless killing occurs in heat of passion, and thus jury instruction to that effect is necessary]; State v. Jones (NE 1994) 515 NW2d 654, 659 [no requirement of intention to kill in committing manslaughter; distinction between second-degree murder and manslaughter upon sudden quarrel is presence or absence of intention to kill]; Cantrell v. State (OK 1977) 562 P2d 527, 528; Husband v. State (OK 1972) 503 P2d 563, 566; IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 708 [Voluntary Manslaughter] (Idaho Law Foundation, Inc., 1995) ["sudden quarrel/heat of passion/provocation should apply to any killing in which the defendant "engaged in conduct which caused the death of [name of decedent]...."]; OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-101, comments [First Degree, Causal Connection Defined] para. 4 (Oklahoma Center for Criminal Justice, 2nd ed. 1996) [that the killing was intentional in any sense is not an element to be proved in "heat of passion" manslaughter]; but see State v. Grunow (NJ 1986) 506 A2d 708, 709-16 [discussing different positions on issue of whether provocation is available as mitigation to reduce the grade of extreme indifference recklessness homicide]; People v. Fardan (NY 1993) 628 NE2d 41, 44 [concluding legislature extended modern extreme emotional disturbance defense only to intentional murder].)

    A statutory scheme which punishes a lesser offense more seriously than a greater offense may violate federal (8th and 14th Amendment) prohibitions against cruel and unusual punishment. (See Roberts v. Collins (4th Cir. 1976) 544 F2d 168, 169-70 [Eighth Amendment violation to impose a greater sentence for simple assault than could have been imposed for assault with intent to commit murder, when simple assault is a necessarily included offense]; see also People v. Schueren (CA 1973) 10 C3d 553, 558-561 [111 CR 129]; Hobbs v. State (IN 1969) 252 NE2d 498, 501 [defendant cannot receive a greater punishment for unlawful entering, a necessarily included offense of second-degree burglary, than he would receive for the greater offense of second-degree burglary]; Dembowski v. State (IN 1968) 240 NE2d 815, 817 [Eighth Amendment violation to impose on a defendant a greater punishment for robbery than for armed robbery, when robbery is a necessarily included lesser offense of armed robbery]; Cannon v. Gladden (OR 1955) 281 P2d 233, 235 [statutory scheme punishing rape with a sentence of up to 20 years, and assault with intent to commit rape with a sentence of up to life, violative of due process to extent it punishes greater offense less than lesser-included offense].)

    Additionally, such a scheme may be a violation of substantive due process principles under 14th Amendment.  (See e.g., Gray v. Whitmore (CA 1971) 17 CA3d 1, 21 [94 CR 904].) Further, the equal protection clause of the 14th Amendment could also be implicated.

See generally, NCJIC 305.13.14 [Murder].

See NCJIC 92.8.1.2  [Unintentional Murder: Federal Circuit Model  Instructions  and Notes].

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    92.8.3.7    Intoxication To Negate Mental State Required For Unintentional Murder

LaFave & Scott, Substantive Criminal Law (West, 1986) 7.4, pp. 205-06; see also Model Penal Code § 2.08(2).

See generally, NCJIC 305.13.14 [Murder].

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See generally, NCJIC 305.13.14 [Murder].

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    See NCJIC 256.7 [Mental, Medical Or Physical Impairment Of Defendant].

See generally, NCJIC 305.13.14 [Murder].

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See generally, NCJIC 305.13.14 [Murder].