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Degrees of Murder

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MysteryAdmin:
Tuesday, July 17, 2001 08:54 AM

Topic: Malice Aforethought, etc. (3 of 10), Read 53 times
From: Jim Doherty
Date: Sunday, July 08, 2001 11:23 AM

Celia:

>What is the difference between
>homicide and manslaughter?
>What decides if it's 1-2 or 3
>or whatever numbers they go
>to. What is the worse kind of
>murder and what is the least,
>and what are the variations
>between? How is it decided
>which is what?

"Homicide" is *any* killing of a human being by another human being. Killing in self-defense is homicide. Killing someone who runs in front of your car unexpectedly, when you're following all the rules of the road, and you have no reasonable way to stop in time, is homicide. Executing a condemned prisoner per a legally constituted judicial order is homicide. In other words, "homicide" does not necessarily mean an illegal, or even (depending on your sense of ethics), immoral act.

"Murder" is defined in common law (most states are not common law states but their individual definitions usually correspond roughly to common law definitions) as killing another human being with malice aforethought. "Malice aforethought" usually, but not always, means "premeditation." However, if one commit a felony that directly causes the death of another person, even if that death was not intended, that is what is called "felony murder." It fits the definition of murder because the malice aforethought with which the felony was planned becomes the malice that caused the death. Hence, you can commit a murder without actually premeditating that murder.

Example: two thugs rob a convenience store. Only one of them has a gun, but they are working together so they are both guilty of the crime of armed robbery. As they exit the store they see a policeman on patrol. The robber with the gun opens fire, and misses. The policeman returns fire, killing the robber in self-defense. The remaining robber surrenders quietly. Technically, the remaining robber can be charged with the murder of his partner, because his partner's death was directly caused by the armed robbery.

You can also be charged with murder if you deliberately commit an act that is so manifestly dangerous that it's clear (or should be clear) that what you're doing might put other people at mortal risk, if that act does in fact cause a death, even if the death is not specifically intended. Firing pot shots at a moving train, for example. This might be called "depraved indifference" or something similar.

First-degree murder is usually a murder that can get you the death penalty (or life in states where there is no death penalty). You mention *Law & Order*. In New York State for many years, the only crime that constituted 1st Degree Murder was killing a policeman or a fireman. All other murders were 2nd degree.

Manslaughter is any unlawful killing of another human being without malice aforethought. First degree usually means that the harm (though not necessarily the killing) was intentional. You get enraged and haul off an belt a guy who, unexpectedly, later dies, for example.

2nd degree manslaughter means an unintentional act. You're at fault in a traffic accident that causes an avoidable death, for example.

There will be all sorts of gradations and differences from state to state, so details might vary where you live.

JIM DOHERTY

Topic: 1st Degree and Aggravating Factors (5 of 10), Read 51 times
Conf: Police Procedures
From: Jim Doherty
Date: Sunday, July 08, 2001 01:58 PM

Celia,

A further explanation of one point:

>First-degree murder is usually
>a murder that can get you the
>death penalty (or life in
>states where there is no death
>penalty).

I should have said, that 1st Degree was a "death penalty" murder back when the death penalty was handed out more indiscriminately. That is to say prior to a late '60s US Supreme Court decision that held that the death penalty, as it was then applied in the United States, was unconstitutional. Since then, states have rewritten their death penalty statutes to conform to that Supreme Court decision.

The consequence of that decision has been that there are, in effect, three degrees of murder (at least in states that have a death penalty. Second degree, which is any murder (that is, any unlawful homicide with malice aforethought) that doesn't qualify as first degree. First degree, which usually denotes things like murders committed with deliberate premeditation as opposed to just malice aforethought, murders deliberately committed in the course of another felony, etc. And first degree with "special circumstances" or "aggravating factors," which are murders for which either the death penalty or life without parole are the only options.

"Special circumstances" or "aggravating factors," like everything else, can vary from state to state. Examples of aggravating factors *might* be things like, the defendant has already been convicted of another murder, the defendant murdered more than one victim, the defendant killed a cop, the defendant committed his crime out of motivations of racial or religious prejudice, the defendant was paid (or paid someone) to commit the murder, the defendant was already serving life without parole at the time of the murder, etc.

Confused yet?

JIM DOHERTY

Topic: Murder in the first degree (6 of 10), Read 51 times
Conf: Police Procedures
From: Jim Craig
Date: Sunday, July 08, 2001 03:08 PM

Celia & Jim:

Jim--that's a pretty darned good practical description and there's not much I can add. Every state is different, so we have to be very careful when we get into technical applications.

In Kansas, we have first and second degree murder and two levels of manslaughter.

The difference between them, as Jim D. observed, is the "aforethought." The key is to understand the mental state. For it to be first degree, all you have to have is enough cognition to form the thought that you intend to kill someone. It might only be a flash of thought. Second degree is usually a murder committed in the "heat of passion." The passion must be such that it overrides the person's ability to restrain their efforts.

Manslaughter is broken down into two categories as well. Voluntary manslaughter is killing someone while doing something that a reasonable person would anticipate would result in death. It's sometimes called a "willful, reckless, wanton" disregard for the potential results of the action. For instance, I drive my car through a school zone at 100 mph and hit a child.

Involuntary manslaughter is doing something that is doing something that may be legal, but doing it in such a negligent manner that someone is killed. This is the concept behind some of the cases in which gun owners have been criminally charged for not keeping their guns stored safely. Another example, I drive through a school zone day dreaming, but obeying the law and run over a child.

(Using vehicle incidents as examples probably isn't the best because most states have some form of vehicular homicide that could govern, but not necessarily.)

Think of it this way:

First degree--I'm mad at you and I'm going to kill you, so I find you and shoot you.
Second degree--I'm so mad I should shoot you and I do without thinking about it.
Voluntarily manslaughter--I'm so mad I should shoot you, but that would be illegal so I shoot in your direction, miss and hit you accidentally.
Involuntary manslaughter--I'm so mad at you I go out in the backyard and shoot my gun into the air and the bullet comes down and kills my neighbor.

That's pretty simplified, but perhaps it will help.

Jim C.

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